FILED

United States Court of Appeals

Tenth Circuit

June 13, 2014

PUBLISH

Elisabeth A. Shumaker
Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

STEVEN D. BONNEY,
Petitioner - Appellee,
v.

No. 13-8052

EDDIE WILSON, Warden,

Wyoming State Penitentiary;
ROBERT LAMPERT, Director,
Wyoming Department of Corrections;
PETER K. MICHAEL, Attorney
General of the State of Wyoming,
Respondents - Appellants.
_________________________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF WYOMING
(D.C. No. 2:11-CV-00345-CAB)
_________________________________________
William DeKrey, Student Intern (Diane E. Courselle, Director, Jennifer Kirk, Student
Intern, and Jesse Feinsod, Student Intern, on the brief), Defender Aid Program,
University of Wyoming College of Law, Laramie, Wyoming, for Petitioner-Appellee.
Meri V. Geringer, Wyoming Senior Assistant Attorney General (Peter K. Michael,
Attorney General, and David L. Delicath, Deputy Attorney General, with her on the
briefs), Cheyenne, Wyoming, for Respondents-Appellants.
_______________________________________
Before GORSUCH, BALDOCK, and BACHARACH, Circuit Judges.
_________________________________________
BALDOCK, Circuit Judge.
__________________________________________

The issue here, as framed by the Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA), is whether the Wyoming state courts denial of Petitioners
ineffective assistance of counsel claim on collateral review of a guilty plea resulted
in a decision that was contrary to, or involved an unreasonable application of, clearly
established Supreme Court precedent. 28 U.S.C. 2254(d)(1). The federal district
court thought so. For reasons that follow, we think not. Exercising jurisdiction
pursuant to 28 U.S.C. 2253(a), we reverse.
I.
Five members of Petitioner Steven Bonneys extended family, four girls and
one boy, accused him of sexually assaulting them on various occasions when they
were between the ages of six and eight and Petitioner was a teenager. The assaults
allegedly occurred around 2000 or 2001. The State of Wyoming eventually charged
Petitioner in 2008 with four counts of second degree sexual assault in violation of
Wyo. Stat. Ann. 6-2-303(a)(v), and one count of third degree sexual assault in
violation of Wyo. Stat. Ann. 6-2-304(a)(ii). 1 Two of the second degree sexual
assault counts involved female victim T.N., while the remaining three counts
involved female victim V.B. Pursuant to a plea agreement, Petitioner pled guilty to

Both statutes were in force at the time of Petitioners offenses. The statutes
were subsequently repealed in 2007 and recodified as amended. The conduct
previously prohibited by 6-2-303(a)(v) is now prohibited by 6-2-314(a)(i). The
conduct previously prohibited by 6-2-304(a)(ii) is now prohibited by 6-2315(a)(ii) and 6-2-316(a)(i).
2

two counts of second degree sexual assault, one each involving T.N. and V.B.
The factual basis for his plea, which Petitioner did not contest, established
that Bonney had committed acts of vaginal and anal intercourse with T.N. and acts
of anal intercourse with V.B. when [t]he victims were both around eight years old
. . . and Bonney was sixteen or seventeen years of age. Bonney v. Wyoming, 248
P.3d 637, 638 (Wyo. 2011) (appeal from the denial of a motion to reduce sentence
pursuant to Wyo. R. Crim. P. 35(b)). As part of the plea agreement, the State agreed
to (1) dismiss the remaining charges against Petitioner; (2) forego filing similar
charges against Petitioner involving P.M., the lone male victim; and (3) recommend
that Colorado authorities not charge Petitioner with similar crimes allegedly
committed against another victim, K.B., in that State. See id. At sentencing, K.S.,
a fifth reported victim of Petitioner, tendered a victim impact statement. Notably,
the information did not charge Petitioner with any wrongdoing involving K.S. Her
oral statement offered no specifics as to Petitioners misconduct, but focused on how
the tragedy had divided the family. The state trial court accepted the plea agreement
and, consistent therewith, sentenced Petitioner to consecutive fifteen to twenty-year
terms of imprisonment.

The court suspended the second sentence in favor of

probation. The court entered its final judgment and sentence on March 3, 2009.
Three or four days prior to the thirty-day deadline under Wyoming law for
filing a motion to withdraw Petitioners guilty plea, around March 30, 2009, his

retained defense counsel received a letter. 2 That letter, addressed to the sentencing
judge and forwarded to counsel, read in its entirety:
My name is [K.S.] My case was dropped but I still would like for you
to take the time and read my letter[.] My cousin[,] Steven D. Bonney,
did touch me in ways that were inappropriate[.] I am left with the
mental abuse from that but I want to be honest with you[.] I am seeing
a pshyciatic [sic] doctor as well as a spiritual healer and that is why I
am writing you this letter. I was not completely honest with the whole
thing. He did not have sexual contact with me but he did put his fingers
in places that no cousin should have[.] I was scared at the time and just
wanted him to feel the pain that I have been feeling since this all
started[.] I did not mean to fabricate the truth and for that I am sorry[.]
It has been an emotional roller coaster for me and I honestly couldn[]t
tell you which way was up or down. I used to be such a good student
and loved sports but since I was so young and held it all in for so long
it really started to mess with me, my mind, body and soul. I know
adding to the real story was wrong and I live with that everyday[.] I
feel like I am being punished all over again for what he had done to me
because I am now writing this letter to say sorry to him for the
fabrication but yet he has not said sorry to me for what he did do. I
also know that [T.N.] fabricated her story as well[.] She doesn[]t want
to admit the truth and I feel sorry for her as well because I know it will
hurt her in the long run, but I know the importance of the truth.
Aplts Appx at 661 (all caps removed). Defense counsel never informed Petitioner
of K.S.s letter and the thirty-day deadline for seeking relief from Petitioners guilty
plea passed. About a month later, Petitioner retained new counsel.
A.
After he became aware of K.S.s letter, Petitioner filed a state petition for

Wyo. R. App. P. 2.01(a) generally provides a notice of appeal must be filed

within 30 days from entry of the appealable order. In Brown v. Wyoming, 175
P.3d 1158, 116263 (Wyo. 2008), the court held the same time limitation generally
applies to a motion to withdraw a guilty plea pursuant to Wyo. R. Crim. P. 32(d).
4

post-conviction relief pursuant to Wyo. Stat. Ann. 7-14-101(b). Therein, Petitioner

raised a host of ineffective assistance of counsel claims. Among them, Petitioner
claimed he never wanted to plead guilty and should have been notified of the K.S.
letter and given a chance to file an appeal or move to withdraw his plea. Aplts
Appx at 94. The sentencing court granted Petitioner an evidentiary hearing on that
claim (and two others not at issue here). At the hearing, the court admitted into
evidence K.S.s affidavit. The affidavit is not part of the appellate record but the
courts description of it is. K.S. stated she lied to the police by representing that
Petitioner had sexually assaulted her and T.N. Id. at 569. K.S. claimed that T.N.
had encouraged her to corroborate T.N.s version of events. Id. Additionally, K.S.
generally claimed that T.N. was not a truthful person and that T.N., V.B., and K.B.
conspired against Petitioner. Id. at 56970. K.S.s affidavit did not support her
conspiracy claim with any specific information and made no mention of P.M.
being part of the purported conspiracy. Id. at 570. K.S., then sixteen years old,
further testified at the hearing:
Q.
A.
Q.
A.
Q.
A.

I want to ask you about a couple of questions that I have with

respect to this letter. . . .
Yes.
My cousin, Steven D. Bonney, did touch me in ways that were
inappropriate. Did you write that?
Yes.
Can you please explain what you meant by that[?]
He would rub my inner thighs. And I would sit on his lap and
basically it was more of a touching of like below the waist, but
my clothes were still on.

Q.
A.
Q.
A.
Q.

A.
Q.
A.
Q.
A.

Q.
A.
Q.
A.
Q.
A.

Okay. Now, I want you to be very specific. When you say inner thighs,
can you please describe specifically where he would touch you?
More towards the vaginal region.
All right. Did he actually put his hands on the vaginal area?
Yes.
***
The letter states, He did not have sexual contact with me, but he
did put his fingers in places that no cousin should have. Did I
read that correctly?
Yes.
Did you write that?
Yes.
And can you please explain what you meant by that statement[?]
Once again, it was touching in my vaginal area and the
inner part of my thighs.[ 3]
***
[The letter also states,] I also know that . . . [T.N.] fabricated
her story as well. Do you see that?
(Witness nodded head.)
Did you write that?
Yes.
Has T.N. ever admitted to you that she lied about what was done
to her by Mr. Bonney?
No.

Id. at 399401.
B.
In January 2010, the Wyoming trial court denied Petitioner post-conviction
relief in a written order. Citing Strickland v. Washington, 466 U.S. 668 (1984), the
court explained that to establish ineffective assistance of counsel, Petitioner must
show counsels failure to timely notify him of K.S.s letter was deficient, i.e., such

On cross examination, K.S. testified Petitioner did not have vaginal or anal
intercourse with her. Aplts Appx at 40102.
6

failure fell below an objective standard of reasonableness, and that such failure
prejudiced his defense. The state court further explained that under Wyoming law
when a guilty plea is challenged based upon ineffective assistance of counsel, the
defendant, to establish prejudice, must show that there is a reasonable probability
that, but for counsels errors, a plea of guilty would not have been entered and the
defendant would have insisted on going to trial. Aplts Appx at 570 (quoting
Palmer v. Wyoming, 174 P.3d 1298, 1301 (Wyo. 2008)). The court observed that
[t]his reasonableness standard is an objective test rather than a subjective one.
Thus, Petitioner must do more than argue that he would have insisted on going to
trialhe must demonstrate that a reasonable person would have done so. Id. at
57071 (emphasis omitted).
Regarding the purported justification for defense counsels nonfeasance, the
state court summarized his testimony:
[Counsel] . . . testified that [he] did not believe K.S.s letter was
important, or that it formed the basis for a motion to withdraw
Petitioners pleas. [Counsel] further testified that he believed that no
possible benefit to Petitioner could arise from the letter. He testified
that he considered the letter to contain evidence of an uncharged felony,
and believed that it could be used to support an additional criminal
charge against Petitioner if he attempted to have his plea set aside,
which would have rendered the stipulated plea agreement void. He also
testified that the letter destroyed Petitioners best possible defense (that
he was completely innocent and that the victims all conspired to invent
charges against him) by proving that he did commit an offense with
K.S. In order to use K.S.s letter and testimony, he would have to call
a witness who would confirm that [Petitioner] had engaged in sexual
misconduct with a minor. He further testified that, in his view, the
letter was not a full recantation of K.S.s accusations. He also noted
7

that Petitioner was not charged or convicted based on his conduct with
K.S., and that K.S. could not recant the accusations by T.N.
Aplts Appx at 564.

Based upon counsels testimony and the surrounding

circumstances as found by the state court, the court opined:

The Court fully understands [counsels] reasons for not advising his
client of the letter. Prior to the plea agreement, Petitioner faced four
counts of second-degree sexual abuse relating to T.N. and V.B.
[Petitioner] faced as many as eight additional counts relating to P.M.
Finally, the letter itself established a second or third degree sexual
assault on K.S., whose testimony would have to be endorsed by the
defense in order to make use of whatever value her testimony
concerning T.N. and V.B. might have. K.S.s testimony at the
evidentiary hearing established a sexual assault on a minor. If
Petitioner were allowed to withdraw his plea and went to trial, K.S.s
testimony would effectively have branded him a child molester if
received, perhaps lending credibility to the claims of T.N. and V.B. It
is not difficult to understand how an attorney might reasonably
conclude that such a letter was nothing but trouble for his client.
Id. at 57475 (footnote omitted).
The state court concluded counsels performance in failing to apprise
Petitioner of K.S.s letter was likely deficient. See id. at 57273 ([A] failure to
advise ones client of a letter potentially forming the basis for a timely withdrawal
of a guilty plea following sentencing may be ineffective assistance in certain
circumstances . . . .). The court further concluded, however, that Petitioner had not
been prejudiced because, among other reasons, whether a reasonable person in his
position would have [moved to withdraw his guilty plea] is questionable. Id. at 576.
Notably, the court did not speculate on the outcome if Petitioner had sought to
directly appeal his convictions rather than file a motion to withdraw. Id. at 579. The
8

Wyoming Supreme Court summarily denied review.

C.
Next, Petitioner timely filed a petition for a writ of habeas corpus pursuant to
28 U.S.C. 2254 in the federal district court. Paying little heed to the state courts
analysis, the district court granted Petitioner a conditional writ on the state-court
record and told the Wyoming Supreme Court to permit Petitioner to directly appeal
his convictions:
If [counsel] had given Bonney the recantation letter, Bonney would
have likely sought to withdraw his guilty plea. According to the [state]
trial court, withdrawal would have been denied. Bonney then would
have likely appealed that decision to the Wyoming Supreme Court. On
appeal, he could have raised the myriad ineffective assistance claims he
now presents. Because counsels constitutionally deficient performance
deprived Petitioner of an appeal that he otherwise would have taken,
Petitioner has been prejudiced and is entitled to an appeal.
Aplts Appx at 645 (emphasis added) (footnotes omitted).
The district court held [t]he [state] trial courts decision represents an
unreasonable application of clearly established federal law because the court did not
consider whether [counsels] failure [to inform him of K.S.s letter] prejudiced
Bonneys right to appeal. Id. at 64849. To reach its decision, the district court
relied exclusively on Roe v. Flores-Ortega, 528 U.S. 470 (2000): In Roe v. FloresOrtega, the United States Supreme Court held that when counsels constitutionally
deficient performance deprives a defendant of an appeal that he otherwise would
have taken, the defendant has made out a successful ineffective assistance of counsel

claim entitling him to an appeal. Aplts Appx at 649 (quoting Flores-Ortega, 528
U.S. at 484). The district court effectively rejected the state trial courts contrary
analysis in a footnote: Respondents argue that Petitioner must demonstrate that the
decision to withdraw the plea was rational under the circumstances. Petitioner may
be able to meet that objective standard, but such analysis is unnecessary here because
the subjective inquiry on the prejudice prong set out in Roe v. Flores-Ortega
controls. Id. at 650 n.15 (internal citation omitted).
II.
So what shall we make of this difference of opinion between state and federal
court? The district court viewed the matter quite differently than its state brethren.
Specifically, the district court jumped beyond the state courts analysis addressing
Petitioners proposed challenge to his guilty plea to tell us that once the state court
denied Petitioners motion to withdraw his plea, he then would have appealed that
decision. According to the district court, the proper focus of defense counsels
nonfeasance was its effect upon Petitioners right to appeal his convictions rather
than upon his right to move to withdraw his guilty plea. In his response brief at
pages 35 and 42, Petitioner provides us the following explanation:
[T]he state court too narrowly limited the issue in this case to
withdrawal of the plea. And, even if the issue in the [state] postconviction petition focused on the decision to plead guilty or withdraw
the plea, in his petition for writ of review to the Wyoming Supreme
Court, Mr. Bonney specifically raised his claim that, through counsels
actions, he was deprived of an appeal he wanted. Thus the issue before
the federal district court was whether the state court properly addressed
10

counsels ineffectiveness regarding either whether Mr. Bonney would

have moved to withdraw his guilty plea or timely appealed.
***
Because the state court found that Mr. Bonney wanted to challenge his
guilty pleawhich he could do by either moving to withdraw it or by
appealinghe was prejudiced by counsels failures which deprived him
an opportunity to make either choice.
(emphasis omitted).
A.
Our primary task is to determine whether the Wyoming trial courts decision
denying Petitioner post-conviction relief resulted in a decision that was contrary to,
or involved an unreasonable application of, clearly established Supreme Court
precedent. 28 U.S.C. 2254(d)(1). This limited standard of review is the same
standard the district court ostensibly applied to grant Petitioner a conditional writ:
(d) 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[.]
Id. [C]learly established Federal law for purposes of 2254(d)(1) refers to the
holdings, as opposed to the dicta, of [the Supreme] Courts decisions as of the time
of the relevant state-court decision. Williams v. Taylor, 529 U.S. 362, 412 (2000).
We may limit our review still further by distinguishing between subsection
(d)(1)s references to state court decisions that are contrary to, and those that

11

involve an unreasonable application of Supreme Court precedent:

Under [subsection (d)(1)s] contrary to clause, a federal habeas court
may grant the writ if the state court arrives at a conclusion opposite to
that reached by [the Supreme] Court on a question of law or if the state
court decides a case differently than [the Supreme] Court has on a set
of materially indistinguishable facts.
Id. at 41213. Pointing out [t]he word contrary is commonly understood to
mean diametrically different, opposite in character or nature, or mutually
opposed, Williams explained that under AEDPAs contrary to clause, the state
courts decision must be substantially different from the relevant precedent of
[the Supreme] Court. Id. at 405 (quoting Websters Third Intl Dictionary 495
(1976)). Meanwhile, under AEDPAs unreasonable application clause, 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. Lockyer v. Andrade, 538 U.S.
63, 7576 (2003) (quoting Williams, 529 U.S. at 411). Instead,
[a]s a condition for obtaining habeas corpus from a federal court, a state
prisoner must show that the state courts ruling on the claim being
presented in federal court was so lacking in justification that there was
an error well understood and comprehended in existing law beyond any
possibility for fairminded disagreement.
Harrington v. Richter, 131 S. Ct. 770, 78687 (2011). This is to say a grant of the
writ is proper only where the state courts application of Supreme Court precedent
is objectively unreasonable. Lockyer, 538 U.S. at 76.

12

Needless to say, the AEDPA standard alone is difficult to meet.

Harrington, 131 S. Ct. at 786. And [e]stablishing that a state courts application of
Strickland was unreasonable under 2254(d) is all the more difficult. The standards
created by Strickland and 2254(d) are both highly deferential, and when the two
apply in tandem, review is doubly so. Id. at 788 (internal citations omitted). In
determining whether Petitioner has satisfied this demanding standard, we first
consider Strickland and its applicable progeny. We then consider whether the
Wyoming trial courts decision was contrary to or constituted an unreasonable
application of these Supreme Court decisions in view of the particular
circumstances of Petitioners case.
B.
Strickland dealt with a claim of ineffective assistance of counsel in a capital
sentencing proceeding, and was premised in part on the similarity between such a
proceeding and the usual criminal trial.

The Courts decision tells us [t]he

benchmark for judging any claim of ineffectiveness must be whether counsels

conduct so undermined the proper functioning of the adversarial process that [the
process] cannot be relied on as having produced a just result. Strickland, 466 U.S.
at 686. As the Wyoming state court recognized, Strickland adopted a two-part
standard for evaluating claims of ineffective assistance of counsel: First, the
defendant must show that counsels representation fell below an objective standard
of reasonableness. Id. at 688. Second, [t]he defendant must show that there is a
13

reasonable probability that, but for counsels unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome. Id. at 694.
Two terms after Strickland, the Supreme Court decided Hill v. Lockhart, 474
U.S. 52 (1985). In that case, the defendant unsuccessfully sought habeas relief
claiming counsel misadvised him regarding the fact that, as a second offender, he
was required to serve one-half rather than one-third of his sentence before becoming
eligible for parole. Hill held the two-part Strickland . . . test applies to challenges
to guilty pleas based on ineffective assistance of counsel. Id. at 58.
In the context of guilty pleas, the first half of the Strickland . . . test is
nothing more than a restatement of the [Sixth Amendment] standard of
attorney competence . . . . The second, or prejudice, requirement, on
the other hand, focuses on whether counsels constitutionally
ineffective performance affected the outcome of the plea process. In
other words, in order to satisfy the prejudice requirement, the
defendant must show that there is a reasonable probability that, but for
counsels errors, he would not have pleaded guilty and would have
insisted on going to trial.
***
[W]here the alleged error of counsel is a failure to investigate or
discover potentially exculpatory evidence [i.e., evidence discovered
after the plea], the determination whether the error prejudiced the
defendant by causing him to plead guilty rather than go to trial will
depend on the likelihood that discovery of the evidence would have led
counsel to change his recommendation as to the plea. This assessment
in turn, will depend in large part on a prediction whether the evidence
likely would have changed the outcome of a trial. . . . As we explained
in Strickland, these predictions of the outcome at a possible trial, where
necessary, should be made objectively, without regard for the
idiosyncrasies of the particular decisionmaker.
Id. at 5860 (internal footnote omitted).
14

Fifteen years later in Flores-Ortega, the Supreme Court again expressly

extended Strickland, this time to claims . . . that counsel was constitutionally
ineffective for failing to file a notice of appeal. Flores-Ortega, 528 U.S. at 477.
In doing so, the Court rejected the view that to justify relief based on defense
counsels failure to file a notice of appeal, a defendant need only show he did not
consent to counsels failure to file such notice. The Court observed that a defense
attorney who disregards specific instructions from the defendant to file a notice of
appeal violates the Strickland standard. Id. A defendant, by instructing counsel
to perfect an appeal, objectively indicate[s] his intent to appeal and [is] entitled to
a new appeal without any further showing of prejudice. Id. at 485 (emphasis
added). But where a defendant has not clearly conveyed his wishes one way or the
other to counsel regarding an appeal, the circumstance-specific reasonableness
inquiry required by Strickland applies. Id. at 47778. The question bearing upon
deficient performance under the latter scenario is whether counsel had a duty to
consult with the defendant about an appeal. The Court held:
[C]ounsel has a constitutionally imposed duty to consult with the
defendant about an appeal when there is reason to think either (1) that
a rational defendant would want to appeal (for example, because there
are nonfrivolous grounds for appeal), or (2) that this particular
defendant reasonably demonstrated to counsel that he was interested in
appealing.
Id. at 480.
Turning to the question of prejudice, the Court noted the critical requirement

15

that counsels deficient performance must actually cause the forfeiture of the
defendants appeal. Id. at 484. [W]e hold that when counsels constitutionally
deficient performance deprives a defendant of an appeal that he otherwise would
have taken, the defendant has made out a successful ineffective assistance of counsel
claim entitling him to an appeal. Id. Importantly, the Court stated this prejudice
standard breaks no new ground, for it mirrors the prejudice inquiry applied in Hill
. . . . Id. at 485.
In Hill, we considered an ineffective assistance of counsel claim based
on counsels allegedly deficient advice regarding the consequences of
entering a guilty plea. Like the decision whether to appeal, the decision
whether to plead guilty (i.e., waive trial) rested with the defendant and,
like this case, counsels advice in Hill might have caused the defendant
to forfeit a judicial proceeding to which he was otherwise entitled. We
held that to satisfy the prejudice requirement of Strickland, the
defendant must show that there is a reasonable probability that, but for
counsels errors, he would not have pleaded guilty and would have
insisted on going to trial.
Id. (quoting Hill, 474 U.S. at 59) (internal brackets omitted).
Finally, in Padilla v. Kentucky, 559 U.S. 356 (2010), a decision rendered after
the state courts decision in this case but before the district courts decision, the
Supreme Court remanded for a determination of prejudice after concluding defense
counsel had an obligation to inform the defendant that a plea carried a risk of
deportation. The Court clarified what the foregoing case law reasonably suggests.
Citing Flores-Ortega, the Court explained that to obtain relief from a guilty plea, the
defendant must do more than allege he would have insisted on going to trial if he had

16

known of the risk of deportation. Instead, the defendant had to convince the court
that a decision to reject the plea bargain would have been rational under the
circumstances. Id. at 372 (citing Flores-Ortega, 528 U.S. at 480, 486).
III.
We commence our analysis of the Wyoming state courts decision in view of
the foregoing Supreme Court precedent by recognizing that the accused has the
ultimate authority to make certain fundamental decisions regarding the case. Jones
v. Barnes, 463 U.S. 745, 751 (1983). Decisions such as whether to plead guilty,
whether to seek to withdraw that plea, and whether to appeal if unsuccessful
rest with the defendant. See Flores-Ortega, 528 U.S. at 485. Perhaps this is why the
State of Wyoming, despite the high hurdle the Strickland standard in combination
with 2254(d)(1) presents, concedes defense counsels failure to notify Petitioner
of K.S.s post-sentencing letter in a timely fashion constitutes constitutionally
deficient performance. We express no opinion on the correctness of the States
concession but instead turn our attention to the second prong of the Strickland
standardprejudice. See Strickland, 466 U.S. at 697 ([A] court need not determine
whether counsels performance was deficient before examining the prejudice suffered
by the defendant as a result of the alleged deficiencies.).
A.
Petitioners overarching argument is that the state court unreasonably applied
an objective prejudice standard to his claim of ineffective assistance because the
17

standard is subjective. According to Petitioner, Flores-Ortega held that a subjective

prejudice standard applies whenever defense counsels deficient performance
deprives the defendant of an appeal he otherwise would have taken. Flores-Ortega,
528 U.S. at 484. Petitioner provides us with factual argument (much of it in tension
with the state courts findings) to suggest he never wanted to plead guilty and his
counsel should have known this. 4 If defense counsel had notified him of K.S.s
letter, Petitioner says he would have sought to challenge his prior plea by filing a
motion to withdraw or a notice of appeal. The notice of appeal, Petitioner tells us
at page 17 of his brief, would have preserved the option of seeking remand to
withdraw the plea. 5 Due to counsels deficient performance in failing to apprise
him of K.S.s letter, however, Petitioner was barred from pursuing either course and
in particular the latter.

This, according to Petitioner (and the district court),

constitutes Strickland prejudiceend of story.

4

On remand, the district court should remain mindful in addressing additional

claims Petitioner raised in his petition but left unaddressed by the district court that
a determination of a factual issue made by a State court shall be presumed to be
correct. 28 U.S.C. 2254(e)(1). Moreover, a writ shall not issue unless that state
courts adjudication of such claim 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. Id. 2254(d)(2).
5

This is surely the most Petitioner could have achieved on direct appeal from
his convictions. First, Petitioners plea agreement waived his right to appeal his
convictions. See Aplts Appx at 18. Moreover, any claim that K.S.s postsentencing letter constituted grounds to withdraw Petitioners guilty plea likely
would not be cognizable on direct appeal because Petitioner had not presented such
claim in the first instance to the state trial court by a motion to withdraw that plea.
Cf. United States v. Foy, 617 F.3d 1029, 103334 (8th Cir. 2010).
18

Unfortunately for Petitioner, we have been unable to locate any Supreme

Court precedent, regardless of factual context, that clearly holds the Strickland
standardin whole or in partis subjective. Flores-Ortega tells us the prejudice
standard it announces breaks no new ground, for it mirrors the prejudice inquiry
applied in Hill v. Lockhart. 6 Id. at 485 (emphasis added). And one may reasonably
read Hill as endorsing an objective prejudice standard by which to assess a collateral
attack on a guilty plea based on ineffective assistance of counsel:
Even if a defendant shows that particular errors of counsel were
unreasonable, . . . the defendant must show that they actually had an
adverse effect on the defense. In addition, we believe that requiring a
showing of prejudice from defendants who seek to challenge the
validity of their guilty pleas on the ground of ineffective assistance of
counsel will serve the fundamental interest in the finality of guilty pleas
....
Hill, 474 U.S. at 58 (emphasis added) (internal citation omitted) (quoting Strickland,
466 U.S. at 693).
Lest any doubt remain as to the dubious nature of Petitioners reading of
Flores-Ortega, the Supreme Court in Padilla cited both Strickland and Flores-Ortega
in support of an objective prejudice standard. In an application of existing Supreme
Court precedent, the Court explained that to establish prejudice based on counsels

To be sure, where a defendant instructs counsel to file a notice of appeal

(which Petitioner did not do in this case) and counsel fails to do so, the Strickland
standard is satisfied because, for reasons Flores-Ortega explains, prejudice is
presumed. Flores-Ortega, 528 U.S. at 483. Even still, the Court described such
instruction as an objective indication of an intent to appeal. Id. at 485.
19

failure to advise his client of certain consequences of a guilty plea, a defendant

must convince the court that a decision to reject the plea bargain would have been
rational under the circumstances. Padilla, 559 U.S. at 372 (emphasis added). This,
of course, is the standard to which the Wyoming state court held Petitioner on
collateral review. See Aplts Appx at 57071 (Petitioner must do more than argue
that he would have insisted on going to trialhe must demonstrate that a reasonable
person would have done so.).
B.
Yet our rejection of Petitioners reading of Flores-Ortega still does not answer
the pivotal question of whether the state courts decision was either contrary to
ormore befitting in this casean unreasonable application of Supreme Court
precedent within the meaning of 2254(d)(1). 7 That inquiry ultimately requires us
to determine what arguments or theories supported or . . . could have supported, the
state courts decision[.] Harrington, 131 S. Ct. at 786. According to the Supreme
Court, if fairminded jurists could disagree [whether] those arguments or theories are
inconsistent with the holding in a prior decision of [the Supreme] Court federal
habeas relief is precluded. Id. In other words, a state courts determination that a
claim lacks merit precludes federal habeas relief so long as a fairminded jurist might
agree that such determination was not inconsistent with Supreme Court precedent.

Of course, any state court decision that is contrary to Supreme Court

precedent is necessarily an unreasonable application of such precedent.
20

1.
Let us alter course for the moment however, and begin with the argument or
theory the Wyoming state courts decision did not endorse. The district court
reasoned that the state court should have considered whether counsels failure to
inform Petitioner of K.S.s letter prejudiced Petitioners right to appeal.

Not

necessarily. Our reading of Flores-Ortega does not require a state court to consider
what effect counsels deficient performance in the trial court had on a defendants
right to appeal. The Supreme Court accepted Flores-Ortega to resolve a conflict in
the lower courts regarding counsels obligation to file a notice of appeal. FloresOrtega, 528 U.S. at 476. Flores-Ortega states at the outset that the case presents a
discussion of the proper framework for evaluating an ineffective assistance of
counsel claim, based on counsels failure to file a notice of appeal without
[defendants] consent. Id. at 473 (emphasis added). Flores-Ortega stands for the
unremarkable proposition that trial counsels responsibility to represent his or her
client effectively may extend to the filing of a notice of appeal.
In contrast, Petitioners claim of ineffective assistance is grounded not in
defense counsels obligation to file a notice of appeal but in counsels obligation to
disclose K.S.s partial recantation letter in a timely fashiona letter Petitioner says
constituted grounds to challenge his guilty plea. Unlike in Flores-Ortega, counsels
deficient performance in this case occurred not as part of the appellate process but
the trial process. See, e.g., Kennedy v. Kemna, 666 F.3d 472, 486 (8th Cir. 2012)
21

(rejecting a broad reading of Flores-Ortega and fastening the prejudice showing

required by Strickland to the forum in which counsel performs deficiently). Even the
district court recognized as much: If [counsel] had given Bonney the recantation
letter, Bonney would have likely sought to withdraw his guilty plea. According to
the [state] trial court, withdrawal would have been denied. Bonney then would have
likely appealed that decision to the Wyoming Supreme Court. Aplts Appx at 645
(emphasis added).
To apply Flores-Ortega here, the state court would have had to extend it
beyond what Flores-Ortega clearly established. [I]f a habeas court must extend a
rationale before [that rationale] can apply to the facts at hand, then by definition the
rationale was not clearly established at the time of the state-court decision. White
v. Woodall, 134 S. Ct. 1697, 1706 (2014) (quoting Yarborough v. Alvarado, 541 U.S.
652, 666 (2004)). Thus, Flores-Ortega is not clearly established precedent for the
argument Petitioner effectively advances, namely that defense counsels performance
in failing to inform him of K.S.s letter denied him the right to challenge his guilty
plea by way of a motion to withdraw or, in the alternative, an appeal for the purpose
of seeking remand to pursue the former. 8 See supra at 18 & n.5.

When pressed at oral argument about whether Petitioner had the right to take
a free standing appeal from his convictions without first moving to withdraw his
guilty plea in the trial court, his counsel acknowledged an appeal would have
provided more time to prepare a motion to withdraw pending remand. See Nixon v.
State, 51 P.3d 851, 854 (Wyo. 2002) (timely appeal tolls thirty day time limit in
which to file a motion to withdraw).
22

2.
Now let us take a look at what arguments or theories supported or could have
supported the state courts decision. In rejecting Petitioners petition for postconviction relief, the state courts decision undoubtedly reflects the Supreme Courts
standard for assessing collateral challenges to guilty pleas. In addition to Strickland,
the state court relied on the Wyoming Supreme Courts decision in Palmer v.
Wyoming, 174 P.3d 1298 (Wyo. 2008).

Palmer adhere[d] to the principle

introduced in Hill. Id. at 1302. Hill, which involved a challenge to a guilty plea,
says [e]ven if a defendant shows that particular errors of counsel were
unreasonable, . . . the defendant must show that they actually had an adverse effect
on the defense. Hill, 474 U.S. at 58 (quoting Strickland, 466 U.S. at 693) (emphasis
added). Indeed, Strickland says:
It is not enough for the defendant to show that the errors had some
conceivable effect on the outcome of the proceeding. Virtually every
act or omission of counsel would meet that test, and not every error that
conceivably could have influenced the outcome undermines the
reliability of the result of the proceeding.
Strickland, 466 U.S. at 693 (internal citation omitted).

This is to say [t]he

defendant must show that there is a reasonable probability that, but for counsels
unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the
outcome. Strickland, 466 U.S. at 694.

23

We hold the state courtapplying Supreme Court precedentreasonably

could have concluded that defense counsels failure to disclose K.S.s letter in a
timely fashion was not sufficient to undermine confidence in the outcome of the
prosecution and that a rational defendant would not have sought to withdraw his
guilty plea despite K.S.s partial recantation. See Schriro v. Landrigan, 550 U.S.
465, 473 (2007) (The question under AEDPA is not whether . . . the state courts
determination was incorrect but whether that determination was unreasonablea
substantially higher threshold.). In recounting the facts, we need remain mindful
of two points. First, as the Court in Padilla explained, it is often quite difficult for
petitioners who have acknowledged their guilt to satisfy Stricklands prejudice
prong.
The nature of relief secured by a successful collateral challenge to a
guilty pleaan opportunity to withdraw the plea and proceed to
trialimposes its own significant limiting principle: Those who
collaterally attack their guilty pleas lose the benefit of the bargain
obtained as result of the plea. Thus, a different calculus informs
whether it is wise to challenge a guilty plea in a habeas proceeding
because, ultimately, the challenge may result in a less favorable
outcome for the defendant, whereas a collateral challenge to a
conviction obtained after a jury trial has no similar downside potential.
Padilla, 559 U.S. at 371 n.12, 37273. Second, as Justice Brennan once observed:
Recantation testimony is properly viewed with great suspicion. It upsets societys
interest in finality of convictions, is very often unreliable and given for suspect
motives, and most often serves merely to impeach cumulative evidence rather than
to undermine confidence in the accuracy of the conviction. Dobbert v. Wainwright,
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468 U.S. 1231, 1234 (1984) (Brennan, J., dissenting from the denial of cert. and
application for stay) (emphasis added). 9
In its decision, the Wyoming state court acknowledged the obviousthe
withdrawal of Petitioners guilty plea was wrought with hazard. If Petitioner were
allowed to withdraw his guilty plea based on K.S.s letter and stand trial, K.S.s
testimony would effectively have branded him a child molester . . . perhaps lending
credibility to the claims of T.N. and V.B. Aplts Appx at 575. On top of that,
K.S.s letter indicates Petitioners offensive conduct may have amounted to a third
degree sexual assault upon her as then defined by Wyoming lawan assault carrying
a maximum sentence of fifteen years under Wyo. Stat. Ann. 6-2-306(a)(iii). The
letter destroyed Petitioners best possible defense, namely that he was completely
innocent and that the victims all conspired to invent charges against him. Aplts
Appx at 564. The state court further noted K.S.s letter only pertained to her
fabrication of uncharged accusations. Id. at 577. Recall the State never charged
Petitioner with any crime against K.S. K.S. also admitted T.N. never told her that
she lied about what Petitioner had done to her. K.S.s accusations that T.N. also
fabricated her story and pressured the other alleged victims to do the same in some

Justice Brennans observation seems all the more forceful for at least two
reasons. First, K.S. suggested in her victim impact statement that her family was
divided over Petitioners guilt. Second, in both her letter and affidavit K.S. insisted
T.N. lied about Petitioners conduct, but in her testimony at the evidentiary hearing
she admitted T.N. never told her she lied.
25

sort of revengeful plot against Petitioner were largely speculation and commentary
on credibility. Id. at 578. And [n]either K.S.s letter nor her affidavit and
testimony cast doubt on the veracity of V.B.s claims of second degree sexual
assaultan assault carrying a maximum sentence of twenty years under Wyo. Stat.
Ann. 6-2-306(a)(ii). Aplts Appx at 578.
The state court also addressed how Petitioners purported misconduct towards
P.M., the lone male victim, might adversely affect Petitioners conspiracy defense:
The testimony of [defense counsel] and [the prosecutor] established that
P.M. did claim to have been the victim of more than one sexual assault
by Petitioner, that [the prosecutor] considered P.M. to be a credible
witness based on his experience prosecuting child sexual abuse cases,
and that the State would file as many as eight additional charges of
sexual abuse relating to P.M. against Mr. Bonney if a plea agreement
was not reached. [Defense counsel] testified that the charges against
P.M. would seriously detract from a defense theory that the claims were
the result of a conspiracyP.M. was not in a position to conspire with
the female victims, and the existence of a male victim tended to
undermine a conspiracy defense as to the charges relating to T.N. and
V.B.
***
There seems to be little doubt that there was communication to the
effect that P.M.s testimony could cause problems if allowed to be
presented as 404(b) [other bad acts] evidence in this case, that
additional charges could be filed, and that the State believed P.M. to be
a credible witness. All of those statements were true.
Id. at 565-66.
The state court understood the real possibility that a challenge to Petitioners
guilty plea might result in a less favorable outcome for him. Padilla, 559 U.S. at
373.

Cf. Harrington, 131 S. Ct. at 78990 (An attorney need not pursue an

26

investigation that would be fruitless, much less one that might be harmful to the
defense.). The state court endorsed defense counsels view that K.S.s letter did not
necessarily form the basis to withdraw Petitioners guilty plea: It is not difficult
to understand how an attorney might reasonably conclude that such a letter was
nothing but trouble for his client. Aplts Appx at 575.
IV.
Petitioner simply has not met his burden to show the Wyoming state courts
decision was so lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility of fairminded disagreement.
Harrington, 131 S. Ct. at 78687. We need not belabor this matter further. Based
on the foregoing, we are satisfied a fairminded jurist could conclude the Wyoming
state court took an acceptable measure of the case in view of Supreme Court
precedent, none of which is directly on point, and rendered a decision that was
neither contrary to, [n]or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United States.
28 U.S.C. 2254(d)(1). For that reason alone, the judgment of the district court
granting Petitioner a conditional writ of habeas corpus is reversed and this cause
remanded for further proceedings consistent with this opinion.
REVERSED and REMANDED.

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