FILED

United States Court of Appeals

Tenth Circuit

March 7, 2014
PUBLISH

Elisabeth A. Shumaker
Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ANTONIO DON MILTON,

Petitioner - Appellant,
v.

No. 12-6187

DAVID MILLER,
Respondent - Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA
(D.C. No. 5:10-CV-01367-F)

John T. Carlson, Assistant Federal Public Defender (Warren R. Williamson,

Interim Federal Public Defender, with him on the briefs), Denver, Colorado, for
Petitioner-Appellant.
Keeley L. Miller, Assistant Attorney General (E. Scott Pruitt, Attorney General of
Oklahoma, with her on the brief), Oklahoma City, Oklahoma, for RespondentAppellee.

Before BRISCOE, Chief Judge, EBEL and KELLY, Circuit Judges.

BRISCOE, Chief Judge.

Appellant Antonio Milton is an Oklahoma state prisoner serving a life

sentence without parole for drug-trafficking-related convictions. After exhausting

his state court remedies, Milton filed a petition for writ of habeas corpus pursuant
to 28 U.S.C. 2254 alleging, in relevant part, that his counsel on direct appeal
was ineffective for failing to assert a claim of ineffective assistance of trial
counsel, specifically that Miltons trial counsel failed to inform Milton of a
favorable pretrial plea offer. The district court denied Miltons petition, but we
granted Milton a certificate of appealability to challenge the district courts ruling
on the ineffective assistance of appellate counsel claim. Now, exercising our
appellate jurisdiction under 28 U.S.C. 1291, we conclude that the Oklahoma
state courts resolution of Miltons ineffective assistance claim cannot survive
scrutiny under 28 U.S.C. 2254(d)(1), and that unresolved issues of fact prevent
us from completing our own de novo review of the claim. Consequently, we
reverse and remand to the district court with directions to conduct an evidentiary
hearing on, and to subsequently review on the merits, Miltons ineffective
assistance of appellate counsel claim.
I
Miltons state court proceedings
On May 22, 2007, Milton was arrested as he attempted to flee a suspected
drug house in the northeast part of Oklahoma City, Oklahoma. Milton was found
to be in possession of a key that fit two locks on the back door of the residence.
Parked outside of the residence was an automobile that was registered to Milton
and that contained a loaded firearm on the front console, a quantity of marijuana,
2

and a utility bill for the residence. The officers also found papers belonging to
Milton in one of the bedrooms in the residence.
Miltons suspected involvement with the drug house led to him being
charged in the District Court of Oklahoma County, Oklahoma, Case No. CF-20073113, with seven criminal counts. At a pretrial hearing held on June 2, 2008, the
trial judge discussed the possibility of a plea bargain and stated on the record that
Milton had the opportunity to plead guilty and receive 23 years on [the pending
charges], prior to preliminary hearing and he turned that down. Aplt. Br., Att. 2,
Tr. at 16. Miltons trial counsel at the time of the pretrial hearing, Mike Arnett,1
responded:
My client has told me that that is the first he ever heard of the 23year offer that was made in [2007]. As neither Mr. Albert [codefense-counsel] nor myself were his attorneys at the time, we have
no way of verifying that but just for the record, he asked that I advise
the Court that this is the first hes heard about it today, is that
correct, Mr. Milton?
Id. Milton responded, Yes. Id. The prosecutor at the time of the pretrial
hearing, Ashley Altshulter, asked if he c[ould] address that just to clear that up.
Id. Altshulter continued,
Im just reading the notes of Josh McGoldrick[, the former
prosecutor in the case]. It is in our file I believe on August 2nd of
[20]07, [Milton] was represented by Joe Reynolds and Mr.
McGoldrick offered 25 on Possession With Intent with all other
1

According to the record, Milton was represented by five different

attorneys during the course of his state court proceedings in Case No. CF-20073113.
3

counts to run concurrent and then also to run concurrent with the 20
on the CF-07-3076 case [another criminal case, involving a drive-by
shooting, that was pending at that time against Milton in the District
Court of Oklahoma County]. It was before prelim. 2
Id. The trial judge responded, Okay. Well, thats water under the bridge
because the States not making that offer today. Today the State has offered 40
[years] to do and I think that the last offer that I heard was concurrent with 18
[years] to do in the Drive-By Shooting. Id., Tr. at 16-17. The trial judge then
discussed the existing plea offer with Milton and confirmed that Milton did not
want to do that. Id., Tr. at 17.
Miltons drug-related case (Case No. CF-2007-3113) proceeded to trial and,
on June 4, 2008, a jury convicted Milton of four of the pending counts: trafficking
in cocaine base after two or more previous felony convictions, possession of a
firearm after two or more previous felony convictions, possession of drug
paraphernalia, and possession of a controlled dangerous substance (marijuana)
after two or more previous felony convictions. The trial court, in accordance with
the jurys recommendations, sentenced Milton to life imprisonment without parole
on the trafficking conviction, life imprisonment with the possibility of parole on
the possession of firearm conviction, one year of imprisonment on the drug
paraphernalia conviction, and ten years imprisonment on the possession of a

The record on appeal indicates that a preliminary hearing conference

was held in Case No. CF-2007-3113 on August 2, 2007. ROA, Vol. 1, Part 2 at
255-56.
4

controlled-dangerous-substance conviction, with all sentences to be served

consecutively to one another.
Milton, represented by a new attorney, Katrina Conrad-Legler, filed a direct
appeal raising seven propositions of error. On May 26, 2009, the Oklahoma
Court of Criminal Appeals (OCCA) issued an unpublished opinion affirming
Miltons convictions and sentences.
On or about August 19, 2010, Milton filed a pro se application for state
post-conviction relief, and an accompanying request for an evidentiary hearing,
with the District Court of Oklahoma County. Milton argued, in pertinent part,
that his appellate counsel rendered ineffective assistance by failing to assert on
direct appeal that Miltons trial counsel was ineffective for failing to inform
Milton of a plea-bargain offer made by the prosecution prior to the preliminary
hearing.
The State of Oklahoma filed a brief in opposition to Miltons application
for post-conviction relief. Attached to that opposition brief was an affidavit from
Jacob Benedict, the assistant public defender who purportedly represented Milton
at the time of the preliminary hearing in Case No. CF-2007-3113. 3 Benedicts

Miltons application identified his trial counsel as Joe Reynolds.

According to the record, Reynolds was a private attorney and the first to represent
Milton in Case No. CF-2007-3113. Reynolds apparently did not, however,
represent Milton either at the preliminary hearing conference conducted on
August 2, 2007, or the preliminary hearing conducted on October 30, 2007.
Instead, it appears that Milton was represented at those points by Benedict.
5

affidavit alleged, in pertinent part, as follows:

3. Originally, the State offered a plea agreement that would
have provided for Mr. Milton to be sentenced to a term of twenty
years imprisonment on a lesser offense in CF-2007-3113 to be served
concurrently with Case No. CF-2007-3076 in exchange for his pleas
of guilty in both cases. This offer would expire, however, upon the
conduct of a preliminary hearing. I communicated this offer to Mr.
Milton. Mr. Milton rejected the offer of twenty years imprisonment
and requested that he be given a preliminary hearing on the charges
in CF-2007-3113.
4. On October 30, 2007, Mr. Milton was scheduled for
preliminary hearing . . . in Case No. CF-2007-3113. Prior to the start
of preliminary hearing, the State offered a plea agreement that would
have provided for Mr. Milton to be sentenced to a term of twenty
years imprisonment on a lesser offense in CF-2007-3113 to be served
concurrently with Case No. CF-2007-3076 in exchange for his pleas
of guilty in both cases. The crime alleged in CF-2007-3076 was an
85 percent crime.
5. Prior to the start of preliminary hearing on October 30,
2007, I along with attorney Joe Reynolds, counsel for Mr. Milton in
CF-2007-3076, met with Mr. Milton. At that time, the States offer
of twenty years imprisonment was conveyed to Mr. Milton. It was
explained to Mr. Milton that this offer would be withdrawn if he
proceeded with preliminary hearing. Mr. Milton rejected the States
offer and preliminary hearing was conducted.
Id., Vol. 1, Part 2 at 378.
Milton filed a reply brief arguing, in pertinent part, that a comparison of
[Benedicts] Affidavit, [sic] to the actual trial transcripts of Case No. CF-20073113, w[ould] clearly contradict and nullify certain material parts of the
information contained in [the] Affidavit. For example, none of the dates and none
of the sentences . . . mentioned in the Affidavit corresponds with the relevant date

of August 2, 2007 or to the relevant plea offer of 23-years, or even 25-years as

was referred to or mentioned in Sub-Proposition A or as in the trial transcripts.
ROA, Vol. 1, Part 1 at 187-88.
On October 21, 2010, the state district court denied Miltons application for
post-conviction relief. In doing so, the state district court held that [i]n order to
maintain a successful claim of ineffective assistance of appellate counsel, [Milton
had to] show he ha[d] suffered a prejudice so serious as to undermine confidence
in the direct appeal process. Id. at 52. In turn, the state district court concluded
that [t]here [wa]s nothing in the record which indicate[d] that appellate counsels
performance rendered the result unreliable or the proceeding fundamentally
unfair. Id. at 53.
Milton appealed from the state district courts denial of his application for
state post-conviction relief. On January 24, 2011, the OCCA affirmed the state
district courts decision. The OCCA had this to say about Miltons claim of
ineffective assistance of appellate counsel:
[I]n order to prevail on his claim of ineffective assistance of
appellate counsel, [Milton] must establish counsel made errors so
serious the performance was deficient, and that the deficient
performance deprived him of an appeal whose results are reliable and
fair. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052,
2064, 80 L.Ed.2d 674, 693 (1984). The fact appellate counsel fails
to recognize or raise a claim, regardless of merit, is not sufficient
alone to establish ineffective assistance of counsel, or to preclude
enforcement of a procedural default. Id. We FIND [Milton] has not
established appellate counsels performance was deficient, or that the
result of his appeal was not reliable and fair.
7

Id., Vol. 1, Part 2 at 235-36.

Federal habeas proceedings
On December 20, 2010, Milton filed a pro se petition for writ of habeas
corpus pursuant to 28 U.S.C. 2254. As he did in his application for state postconviction relief, Milton alleged, in pertinent part, that
appellate counsel, Katrina Conrad-Legler, rendered ineffective
assistance by failing to raise in [his] direct appeal the following subproposition[] of trial counsels deficiencies: . . . trial attorney, Joe
Reynolds, rendered ineffective assistance by failing to inform
[Milton] of a (pre-preliminary hearing_ plea-bargain offer of 23
years on all counts until the day set for trial, and well after the plea
offer had been withdrawn.
ROA, Vol. 1, Part 1 at 23 (capitalization in original omitted).
On February 10, 2012, the magistrate judge assigned to the case issued a
report and recommendation recommending that Miltons petition be denied. With
respect to Miltons claim of ineffective assistance of appellate counsel, the
magistrate judge concluded, after reviewing the affidavit from assistant public
defender Jacob Benedict, that the underlying claim of ineffective trial counsel
[wa]s without merit, and that Milton therefore c[ould not] demonstrate that
[his] appellate counsel was ineffective for failing to raise trial counsels
ineffective representation. Id., Vol. 1, Part 2 at 258. More specifically, the
magistrate judge stated as follows:
In his affidavit, Mr. Benedict avers that the State initially offered
[Milton] a plea agreement that included a sentence of 20 years
imprisonment on a lesser charge in CF 2007-3113, to run
8

concurrently with an equal sentence in Case No. 2007-3076 [the

drive-by shooting case], in return for his guilty plea in both cases
which offer would expire once a preliminary hearing was conducted.
Mr. Benedict states that he communicated the offer to [Milton], but
that [Milton] rejected the offer and requested a preliminary hearing.
Mr. Benedict states further that on October 30, 2007, prior to the
beginning of the preliminary hearing which was scheduled for that
day, the State again offered the same plea agreement. According to
Mr. Benedicts affidavit, both he and Mr. Reynolds [purportedly
Miltons counsel in the drive-by shooting case] met with [Milton]
and told him about the States plea offer, explaining that the offer
would be withdrawn if the preliminary hearing was conducted. Upon
[Milton]s rejection of the offer, the preliminary hearing was held.
See Response, Ex. 9, Att. 3.
In his Reply, [Milton] asserts, without further explanation, that
the plea offer discussed by Respondent in Proposition 5(A), pp.4245 of his response is not the same plea offer complained of in SubProposition (A) of Ground 8 of [Milton]s habeas petition. Reply
at 12. [Milton] does not, however, deny Mr. Benedicts sworn
statement that a plea agreement offering 20 years in prison in
exchange for his guilty pleas was communicated to and rejected by
[Milton] on two occasions prior to the preliminary hearing.
Assuming that [Milton]s claim is based on a different offer of 23
years in prison in exchange for his guilty plea which was not
communicated to him until the day of trial, such claim would not
support an ineffective counsel claim. Having failed to deny Mr.
Benedicts sworn statement that he had twice rejected an earlier 20
year plea offer, [Milton] cannot demonstrate any prejudice resulted
from counsels alleged failure to communicate a less favorable offer.
See Strickland, 466 U.S. at 687. The undersigned notes further that
[Milton] in open court rejected the States offer on the day of trial of
40 years to run concurrently with 18 years on the drive-by shooting
case. T Tr. Vol. 1 at 17-18. Because the underlying claim of
ineffective trial counsel is without merit, [Milton] cannot
demonstrate that appellate counsel was ineffective for failing to raise
trial counsels ineffective representation. Thus, the OCCAs denial
of this claim of ineffective appellate counsel was neither contrary to
nor an unreasonable application of Strickland, nor an unreasonable
determination of the facts in light of the evidence before it. It is
therefore recommended that this ground for habeas relief be denied.
9

Id. at 257-58.
Milton filed written objections to the magistrate judges report and
recommendation. Milton conceded that he was offered a twenty-year sentence in
the drive-by shooting case (Case No. 2007-3076), id. at 320-21, but he alleged
that was the only plea offer discussed with [him] prior to his October 30, 2007
preliminary hearing. 4 Id. at 321. And, Milton alleged, [t]he only plea offer
discussed in Case No. CF-2007-3113 was the forty (40) year plea offer made on
the day of trial (June 2, 2008) and [he] turned down [that] offer on the advice of
counsel, Mr. Arnett. Id. Consequently, Milton asserted that [i]n his sworn
affidavit, Mr. Benedict [wa]s either lying about the none-existing [sic] twenty
(20) year plea offer in Case No. CF-2007-3113, or he ha[d] Case No. CF-20073113 confused with Case No. CF-2007-3076 [the drive-by shooting case] . . . .
Id. at 321-22 (internal citations omitted).
Milton also conceded in his written objections that he may have been
confused as to which attorney was representing him in Case No. CF-2007-3113.
Specifically, Milton alleged that the preliminary hearings in both cases . . . were
held simultaneously, before the same judge . . . and [he] was being represented
simultaneously by both Mr. Jacob Benedict and Mr. Joe Reynolds. Id. at 323.
[B]ecause both defense attorneys were simultaneously assisting each other,
4

According to Miltons reply brief, he rejected that plea offer and the
drive-by shooting case was ultimately dismissed for lack of prosecution. ROA,
Vol. 1, Part 2 at 321 n.15.
10

Milton alleged, it should be understandable how [he] might be confused as to

which of the two attorneys . . . had the duty to advise[] him of the pre-preliminary
hearing plea offer in Case No. CF-2007-3113. Id. In any event, Milton argued,
[t]he real issue was that no one informed [him] of any pre-preliminary hearing
plea offer in Case No CF-2007-3113, and as a direct result, rather than serving a
twenty-five (25) year sentence with all counts running concurrently, [he] [wa]s
now serving substantially longer sentences and was therefore prejudiced by trial
counsels failure to timely inform him of the States pre-preliminary hearing plea
offer of twenty-five (25) years in Case No. CF-2007-3113. Id.
Finally, Milton argued in his written objections that because there was
some confusion as to what and when, Mr. Jacob Benedict or Mr. Joe Reynolds
did, or did not advise Petitioner of, regarding the States plea offer in Case No.
CF-2007-3113 . . . , it [wa]s error for [the magistrate judge] to recommend the
denial of this habeas issue without granting [Milton] his requested evidentiary
hearing. Id. at 325.
On July 11, 2012, the district court issued a two-page order accepting,
adopting and affirming the magistrate judges report and recommendation in its
entirety. The order did not expressly address any of the objections raised by
Milton. The order also concluded that Milton was not entitled to a certificate of
appealability (COA). Judgment was entered in the case that same day.
Milton filed a notice of appeal on July 24, 2012. He subsequently filed a
11

pro se application for COA with this court. We granted Milton a COA with
respect to his ineffective assistance claim. In doing so, we stated, in relevant
part:
Construing Petitioners pro se filings liberally, we conclude that
reasonable jurists could debate the magistrate judges conclusion that
Petitioner conceded the truth of defense counsels affidavit.
Moreover, contrary to the States arguments, we cannot simply
assume the credibility of defense counsel and accept his affidavit
over Petitioners sworn assertions based on the fact that he is an
attorney. Rather, counsels affidavit simply creates a dispute of fact
which has never been explicitly resolved by any court and which the
record is inadequate to resolve. Indeed, the record provides more
support for Petitioners assertions than it does for defense counsels.
***
We conclude that reasonable jurists could debate the merit of
Petitioners claim of ineffective assistance based on the counsels
alleged failure to inform him of the plea offer. We also conclude
that reasonable jurists could debate whether Petitioner is entitled to
an evidentiary hearing to develop the facts supporting this claim.
Order at 5-6. Along with granting Milton a COA, we also appointed counsel to
represent Milton on appeal. Appointed counsel has since filed a supplemental
opening brief, as well as a supplemental reply brief to respondents response
brief.
II
Standard of review
Because Miltons habeas petition was filed after the effective date of the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), we are bound

12

by AEDPAs standards of review. See Snow v. Sirmons, 474 F.3d 693, 696 (10th
Cir. 2007) (holding that AEPDA applies to 2254 habeas petitions filed after its
effective date).
Under AEDPA, the standard of review applicable to a particular claim
depends upon how that claim was resolved by the state courts. Id. If a claim was
addressed on the merits by the state courts, our standard of review is governed by
28 U.S.C. 2254(d), which provides as follows:
An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be granted
with respect to any claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the claim
(1) 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; or
(2) 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).
When reviewing a state courts application of federal law under 28
U.S.C. 2254(d), we are precluded from issuing the writ simply because we
conclude in our independent judgment that the state court applied the law
erroneously or incorrectly. McLuckie v. Abbott, 337 F.3d 1193, 1197 (10th Cir.
2003). Rather, we must be convinced that the application was also objectively
unreasonable. Id. This standard does not require our abject deference, but

13

nonetheless prohibits us from substituting our own judgment for that of the state
court. Snow, 474 F.3d at 696 (internal quotation marks and citation omitted).
Was the OCCAs decision contrary to, or an unreasonable
application of, clearly established federal law?
Milton argues on appeal that the OCCAs resolution of his ineffective
assistance of appellate counsel claim was contrary to, or an unreasonable
application of, clearly established federal law. In turn, Milton argues, he is
entitled to a federal evidentiary hearing to resolve his claim. We proceed to
address these arguments in turn.
a) The clearly established law applicable to Miltons claim
Milton correctly identifies Strickland v. Washington, 466 U.S. 668 (1984)
as the clearly established federal law applicable to his ineffective assistance of
appellate counsel claim. See Smith v. Robbins, 528 U.S. 259, 285 (2000)
(holding that the proper standard for evaluating [a] claim that appellate counsel
was ineffective . . . is that enunciated in Strickland). In Strickland, the Supreme
Court held that [a] convicted defendants claim that counsels assistance was so
defective as to require reversal of a conviction or death sentence has two
components. 466 U.S. at 687. First, the Court noted, the defendant must
show that counsels performance was deficient. Id. In the context of an
appellate counsel claim, this means that [appellate] counsel unreasonably failed
to discover [a] nonfrivolous issue[] and to file a merits brief raising [it]. Smith,

14

528 U.S. at 285. Second, the Court noted, the defendant must show that the
deficient performance prejudiced the defense. Strickland, 466 U.S. at 687. In
the context of an ineffective assistance of appellate counsel claim, this means the
defendant must show a reasonable probability that, but for his counsels
unreasonable failure to raise a particular nonfrivolous issue, he would have
prevailed on his appeal. Smith, 528 U.S. at 285.
b) Was the OCCAs analysis contrary to clearly established federal law?
Milton challenges the OCCAs analysis of his ineffective assistance of
appellate counsel claim, arguing that the OCCAs decision was both contrary to
and an unreasonable application of clearly established federal law because the
OCCA misstated the legal tests governing the proper inquiry under federal law.
Aplt. Br. at 16.
We agree with Milton that the OCCA misstated the standard for analyzing
the issue of whether appellate counsels performance was deficient. McGee v.
Higgins, 568 F.3d 832, 838 (10th Cir. 2009). In particular, the OCCA truncated
Stricklands first prong by stating, The fact appellate counsel fails to recognize
or raise a claim, regardless of merit, is not sufficient alone to establish ineffective
assistance of counsel, or to preclude enforcement of a procedural default. ROA,
Vol. 1, Part 2 at 235. As we recognized in both McGee and Cargle v. Mullin, 317
F.3d 1196, 1204-05 (10th Cir. 2003), this truncation . . . [has] enable[d] the
OCCA to reject appellate ineffectiveness allegations without any assessment of
15

the merits of the underlying predicate claims, so that the OCCA has been able to
declare that a failure to raise even a meritorious claim does not, in itself,
constitute deficient performance. Cargle, 317 F.3d at 1204 (quoting Slaughter
v. State, 969 P.2d 990, 996 (Okla. Crim. App. 1998)). It is clearly wrong, as a
matter of federal law, to require as a necessary condition for relief under
Strickland, something beyond the obvious merit of the omitted claim. Id. at
1205. The very focus of a Strickland inquiry regarding performance of appellate
counsel is upon the merits of omitted issues, and no test that ignores the merits of
the omitted claim in conducting its ineffective assistance appellate counsel
analysis comports with federal law. Id.
Milton also challenges the OCCAs framing and apparent analysis of
Stricklands prejudice standard. Consistent with our holding in McGee, however,
we need not reach this issue. In McGee, the OCCA rejected an ineffective
assistance of appellate counsel claim using language nearly identical to that used
in Miltons case:
The fact appellate counsel fails to recognize or raise a claim,
regardless of merit, is not sufficient alone to establish ineffective
assistance of counsel, or to preclude enforcement of a procedural
default. After a review of the record and argument presented by
Petitioner, we FIND Petitioner has not established appellate
counsels performance was deficient or that the result of his appeal
was not reliable and fair.
McGee v. State, No. PC-2006-364, slip op. at 4 (Okla. Crim. App. Jun. 9, 2006)
(internal citation omitted). We held that the OCCAs analysis of appellate
16

counsels performance, which quite clearly incorporated the repudiated

regardless of merit standard, necessarily deviated from the controlling
federal standard and was not entitled to deference under 2254(d)(1). McGee,
568 F.3d at 839 (quoting Cargle, 317 F.3d at 1205). We made no attempt in
McGee to defer to the OCCAs purported prejudice analysis, and understandably
so. By ignoring the merits of the underlying predicate claim in assessing
appellate counsels performance, the OCCA necessarily rendered meaningless any
accompanying prejudice analysis.
We thus conclude, as we did in McGee, that the OCCAs analysis [of
Miltons ineffective assistance of appellate counsel claim] necessarily deviated
from the controlling federal standard, 568 F.3d at 839 (quoting Cargle, 317 F.3d
at 1205), and was thus contrary to clearly established federal law, 5 see Williams
v. Taylor, 529 U.S. 362, 405 (2000) (A state-court decision will certainly be
contrary to our clearly established precedent if the state court applies a rule that
contradicts the governing law set forth in our cases.); McGee, 568 F.3d at 839
(refusing to give deference to OCCA decision that was inconsistent with the
5

Even setting aside the OCCAs improper formulation of Stricklands first

prong, we would still conclude that the OCCAs ultimate rejection of Miltons
ineffective assistance of appellate counsel claim was an unreasonable application
of Strickland given the inherent factual dispute in the record. Oklahoma law
recognizes an ineffective assistance claim based upon a showing of the failure to
properly communicate a plea offer and resulting prejudice. See Jiminez v. State,
144 P.3d 903, 906-07 (Okla. Crim. App. 2006). Federal law is to the same effect.
Missouri v. Frye, 132 S. Ct. 1399, 1408-09 (2012); see also Lafler v. Cooper, 132
S. Ct. 1376, 1390-91 (2012).
17

Strickland standards).
Millers satisfaction of the 2254(d)(1) standard has two related effects.
First, although it does not entitle him to the issuance of a writ of habeas corpus,
see Horn v. Banks, 536 U.S. 266, 272 (2002) (While it is of course a necessary
prerequisite to federal habeas relief that a prisoner satisfy the AEDPA standard of
review set forth in 28 U.S.C. 2254(d) . . . , none of our post-AEDPA cases have
suggested that a writ of habeas corpus should automatically issue if a prisoner
satisfies the AEDPA standard), it effectively removes AEDPAs prohibition on
the issuance of a writ. Second, it requires us to review de novo his ineffective
assistance of appellate counsel claim, rather than deferring to the OCCAs
resolution of that claim. See Panetti v. Quarterman, 551 U.S. 930, 953 (2007)
(When a state courts adjudication of a claim is dependent on an antecedent
unreasonable application of federal law, the requirement set forth in 2254(d)(1)
is satisfied. A federal court must then resolve the claim without the deference
AEDPA otherwise requires.); Williams, 529 U.S. at 406 (noting that a federal
court will be unconstrained by 2254(d)(1) [if] the state-court decision falls
within that provisions contrary to clause); Heard v. Addison, 728 F.3d 1170,
1179 (10th Cir. 2013) (reviewing ineffective assistance claim de novo where the
OCCAs decision was contrary to Strickland).

18

c) Did Miltons appellate counsel err in failing to raise the Strickland issue
on direct appeal?
We thus turn to the first prong of Stricklands two-pronged test for
ineffective assistance. Milton argues, with respect to the first prong, that his
appellate counsel performed deficiently by failing to argue on direct appeal that
Miltons trial counsel was ineffective for failing to inform Milton of a plea
bargain that was purportedly offered by the prosecution in Case No. CF-20073113 at some point prior to the preliminary hearing on October 30, 2007. In
support, Milton notes that in Jiminez, the OCCA recognized that the right to
effective counsel guaranteed by the Sixth and Fourteenth Amendments . . .
protects a criminal defendant from objectively deficient representation by defense
counsel in connection with the plea bargaining process, 144 P.3d at 905, and
held that a lawyers failure to promptly communicate a plea offer cannot be
characterized as objectively reasonable representation under prevailing
professional norms, id. at 906. In turn, Milton argues that his appellate counsel
never raised the Jiminez/Strickland error committed by the trial lawyer, even
though the transcripts from the opening morning of trial clearly revealed that
Miltons first lawyer never communicated a plea offer to his client, a plea whose
favorable terms the prosecutor himself described for the record. Aplt. Br. at 2425. Milton asserts that his appellate lawyer should have raise[d] the issue, not
only because it was apparent from the record but also because state law squarely

19

supported it. Id. at 25.

We agree with Milton. A review of Miltons trial transcripts should have
alerted Miltons appellate counsel to the possibility that Miltons trial attorney
failed to promptly and meaningfully convey to Milton the existence of a plea
offer made by the prosecution at some point prior to the October 30, 2007
preliminary hearing in Case No. CF-2007-3113. And, in light of Jiminez,
Miltons appellate counsel should have been aware that such a failure was
inconsistent with prevailing professional norms and gave rise to a viable claim of
ineffective assistance of trial counsel. By failing to discover and raise the issue
on direct appeal, Miltons appellate counsel clearly performed deficiently. Smith,
528 U.S. at 285.
d) Was Milton prejudiced by his appellate counsels deficient performance?
The focus then turns to the second prong of the Strickland analysis, i.e.,
whether Milton was prejudiced by his appellate counsels deficient performance.
Although the state courts apparently resolved this issue in the respondents favor,
and the district court expressly did so, on the basis of the statements contained in
the affidavit from Jacob Benedict, we conclude it was error to do so. That is
because, as we noted in our order granting Milton a COA, there is conflicting
evidence in the record on appeal regarding the precise nature of the plea offer that
was purportedly made by the prosecution in Case No. CF-2007-3113 prior to the
October 30, 2007 preliminary hearing (i.e., whether it was for twenty years, as
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alleged by Benedict, for twenty-three years, as stated by the state trial court, or
for twenty-five years, as stated by the prosecutor on the eve of trial) and, more
importantly, whether Milton was made aware of any such offer. 6 As our prior
order also noted, the record provides more support for [Milton]s assertions than
it does for [Benedict]s, and we cannot simply assume the credibility of . . .
[Benedict] and accept his affidavit over [Milton]s sworn assertions based on the
fact that he is an attorney. Order at 5. In the end, [Benedict]s affidavit simply
creates a dispute of fact which has never been explicitly resolved by any court
and which the record is inadequate to resolve. Id.
The outcome of this factual dispute is critical to the resolution of Miltons
ineffective assistance of appellate counsel claim. Assuming, for purposes of
argument, that Milton is truthfully alleging that he was not informed of any prepreliminary-hearing plea offer, and that he would have accepted such offer had he
been timely informed of it, that is clearly sufficient to establish prejudice under
the second prong of Strickland. At the time of Miltons direct appeal, it was
established under Oklahoma law that [a] lawyers communication and
explanation of a plea bargain offer must be reasonably prompt under the
circumstances, Jiminez, 144 P.3d at 906, and that counsels failure to convey a
6

We reach this conclusion without taking into consideration the factual

allegations made by Milton in his objections to the federal magistrate judges
report and recommendation. These additional factual allegations, which we have
recited for purposes of the district courts benefit on remand, only add to the
factual dispute.
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plea offer can prejudice a defendant even though he ultimately stands a fair and
impartial trial if the defendant demonstrates a reasonable probability that [he]
would have accepted the offer if it had been timely communicated, id. at 907
(internal quotation marks omitted). Consequently, and again assuming the truth
of Miltons factual allegations, we conclude there is a reasonable probability that,
had Miltons appellate counsel raised on direct appeal the issue of whether trial
counsel failed to inform Milton of the pre-preliminary hearing plea bargain,
Milton would have prevailed on this issue in his direct appeal.
e) Is Milton entitled to a federal evidentiary hearing?
The final question we must address is whether Milton is entitled to a
federal evidentiary hearing to resolve the disputed factual issues relating to his
ineffective assistance of appellate counsel claim.
Federal law restricts the authority of federal courts to grant evidentiary
hearings in habeas cases. Stouffer v. Trammell, 738 F.3d 1205, 1219 (10th Cir.
2013) (internal quotation marks and brackets omitted). In particular, 28 U.S.C.
2254(e)(2) severely limits the availability of a federal evidentiary hearing in cases
where a state habeas petitioner has failed to develop the factual basis of a claim
in State court proceedings, 28 U.S.C. 2254(e)(2), due to a lack of diligence,
or some greater fault, attributable to the p[etitioner] or the p[etitioner]s counsel,
Williams, 529 U.S. at 432. To demonstrate the required diligence, [Milton] must
show that he made a reasonable attempt, in light of the information available at
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the time, to investigate and pursue claims in state court in the manner prescribed
by state law. Stouffer, 738 F.3d at 1219 (internal quotation marks omitted).
It is undisputed that Milton asked both the state trial court and the OCCA
for an evidentiary hearing on his ineffective assistance of appellate counsel claim.
See ROA, Vol. 1, Part 2 at 203 (appellate brief asking for relief in the form of a
remand and state evidentiary hearing). Both of those courts, however, denied
Miltons request. Under our precedent, [t]his is sufficient to satisfy 2254(e)s
diligence requirement. Stouffer, 738 F.3d at 1219.
The only potential remaining hurdle for Milton is the Supreme Courts
recent decision in Cullen v. Pinholster, 131 S.Ct. 1388 (2011). In Cullen, the
Supreme Court held that review under 2254(d)(1) is limited to the record that
was before the state court that adjudicated the claim on the merits. 131 S.Ct. at
1398. Consequently, a federal appellate court may not, in reviewing a federal
habeas claim under 2254(d)(1), look to any new evidence that was developed by
the federal district court that initially reviewed the claim. Id. at 1400 (holding
that evidence introduced in federal court has no bearing on 2254(d)(1)
review). Notably, the Supreme Court emphasized that [s]ection 2254(e)(2)
continues to have force where 2254(d)(1) does not bar federal habeas relief.
Id. at 1401.
We conclude that Cullen does not prohibit us from remanding the case to
the district court with instructions to hold an evidentiary hearing on Miltons
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ineffective assistance of appellate counsel claim. As Justice Breyer noted in his

concurring and dissenting opinion in Cullen, 2254(d)(1) does not leave
AEDPAs hearing section, 2254(e), without work to do. Id. at 1412.
Specifically,
[a]n offender who believes he is entitled to habeas relief must first
present a claim (including his evidence) to the state courts. If the
state courts reject the claim, then a federal habeas court may review
that rejection on the basis of the materials considered by the state
court. If the federal habeas court finds that the state-court decision
fails (d)s test (or if (d) does not apply), then an (e) hearing may be
needed.
Id.
Miltons case is precisely the type anticipated by Justice Breyers
comments. As we have already explained, the OCCAs decision cannot survive
scrutiny under 2254(d)(1). And, as we have also explained, disputed issues of
fact exist that preclude us from completing our own de novo review of Miltons
ineffective assistance of appellate counsel claim. Thus, we remand this case to
the district court to conduct an evidentiary hearing and resolve those disputed
issues of fact, and in turn reexamine Miltons ineffective assistance of appellate
counsel claim in light of its factual findings.
III
The judgment of the district court is REVERSED and the case
REMANDED with directions to the district court for further proceedings
consistent with this order.
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