Nicanor Rodriguez v. Dennis Bush

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 0:13-cv-03401-TLW. [999974457]. [14-7297, 15-6716]

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-7297

NICANOR PEREZ RODRIGUEZ,
Petitioner - Appellant,
v.
DENNIS BUSH, Warden,
Respondent - Appellee.

No. 15-6716

NICANOR PEREZ RODRIGUEZ,
Petitioner - Appellant,
v.
DENNIS BUSH, Warden,
Respondent - Appellee.

Appeals from the United States District Court for the District
of South Carolina, at Rock Hill.
Terry L. Wooten, Chief
District Judge. (0:13-cv-03401-TLW)

Argued:

September 20, 2016

Decided:

November 23, 2016

Before KEENAN, FLOYD, and THACKER, Circuit Judges.

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Affirmed by published opinion.
Judge Floyd wrote the opinion,
in which Judge Keenan and Judge Thacker joined.

ARGUED: Matthew Jay Kappel, Greenville, South Carolina, for
Appellant. Alphonso Simon, Jr., OFFICE OF THE ATTORNEY GENERAL
OF SOUTH CAROLINA, Columbia, South Carolina, for Appellee.
ON
BRIEF: Alan Wilson, Attorney General, John W. McIntosh, Chief
Deputy Attorney General, Donald J. Zelenka, Assistant Deputy
Attorney General, OFFICE OF THE ATTORNEY GENERAL OF SOUTH
CAROLINA, Columbia, South Carolina, for Appellee.

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FLOYD, Circuit Judge:
Nicanor Perez Rodriguez appeals the order of the district
court below denying his 28 U.S.C. § 2254 petition.
Immediately
drug

before

trafficking,

the

Rodriguez’s
trial

state

judge

criminal

rejected

a

plea

reached between Rodriguez and the state prosecutor.

trial

for

agreement
The judge

did so off the record, and gave no reason for this rejection
other than stating that he “was ready to try a case.”
Rodriguez’s
plea,

attorney

nor

did

he

did

ask

not
the

object
judge

rejecting the plea on the record.

to

to

the

place

J.A. 167.

rejection
his

of

the

reasons

for

Rodriguez contends that his

counsel’s failure to object constitutes ineffective assistance
of counsel.

He asks this Court for relief under 28 U.S.C.

§ 2254.
To prevail on an ineffective assistance of counsel claim,
Rodriguez

must

show

(1)

“that

counsel’s

performance

was

deficient” and (2) “that the deficient performance prejudiced
the

defense.”

(1984).

Strickland

v.

Washington,

466

U.S.

668,

687

Rodriguez has not shown that his defense was prejudiced

by his counsel’s alleged error.

For this reason, we affirm the

decision of the district court.

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I.
In

2009,

a

South

Carolina

jury

multiple counts of drug trafficking.

convicted

Rodriguez

on

The trial court sentenced

Rodriguez to an aggregate term of 45 years of imprisonment.
In

2010,

Rodriguez

filed

in

state

court

postconviction relief (the “PCR Motion”).

a

motion

for

In his PCR Motion,

Rodriguez asserted that the trial court violated his federal due
process rights by refusing to allow him to enter a guilty plea
pursuant to a negotiated plea agreement.
that

his

trial

counsel

provided

Rodriguez also alleged

ineffective

assistance

by

failing to object to the trial court’s rejection of his plea,
which then precluded appellate review of the issue. 1
The
Motion.

state

court

held

an

evidentiary

hearing

on

the

PCR

At the hearing, Rodriguez’s trial counsel, James Ervin,

testified that prior to Rodriguez’s trial, the state offered
Rodriguez a plea deal with a recommended 25-year sentence, which
Rodriguez rejected.

On the day of trial, the state offered

Rodriguez a new plea agreement with a recommended sentence of 20
years, which Rodriguez accepted.

The state made similar offers

to Rodriguez’s co-defendants, whose cases were also scheduled to
go to trial that day.
1

Rodriguez raised another claim, regarding his counsel’s
failure to inform him of his right to appeal, but this claim is
not relevant here.

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The trial judge accepted Rodriguez’s co-defendants’s pleas.
The

prosecutor

and

Ervin

then

approached

the

trial

judge

chambers to inform him of Rodriguez’s plea agreement.

in

Ervin

testified that the trial judge said that “he was not going to
accept the plea and that he was ready to try a case this week or
that week.”

J.A. 167.

Ervin testified, “I’d never had that

happen before. . . . So I was, myself, professionally confused
as to how to proceed.”

J.A. 168.

Ervin explained that he

attempted to persuade the judge to accept the plea deal, noting
that

the

judge

similar pleas.

had

just

accepted

Rodriguez’s

co-defendants’

Ervin did not, however, object to or mention the

court’s rejection of the plea agreement on the record.

The

trial judge never stated on the record why he refused the plea
agreement.
The state court denied the PCR Motion as relevant to this
appeal.

It identified the relevant issues presented as:

(1)

Ineffective assistance of counsel:
. . . .
b. Failure to object to the trial judge’s
decision
not
to
accept
the
plea
recommendation.

(2)

Trial
judge’s
refusal
to
accept
the
recommendation was a denial of due process.

J.A. 190.

plea

The court held that Rodriguez failed to meet his

burden to show that Ervin should have objected to the judge’s
refusal to accept the plea agreement, and that Rodriguez could

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not

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prove

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prejudice.

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Additionally,

the

court

held

that

Rodriguez’s due process rights had not been violated.
Rodriguez then filed a petition for a writ of certiorari in
the Supreme Court of South Carolina, challenging the denial of
the PCR motion.
South

Carolina

this issue.

In a summary opinion, the Supreme Court of
denied

Rodriguez’s

petition

for

certiorari

on

See Rodriguez v. State, No. 2013-MO-023, 2013 WL

8596567 (S.C. Aug. 14, 2013) (per curiam). 2
Rodriguez

then

filed

the

instant

§ 2254

district court below denied his petition.

petition.

The

Rodriguez then filed

a motion for a certificate of appealability, which this Court
granted.

II.
A.
This Court reviews de novo the district court’s decision
denying Rodriguez’s § 2254 petition.

Grueninger v. Dir., Va.

Dep’t of Corr., 813 F.3d 517, 523 (4th Cir. 2016).

When a state

court has adjudicated a § 2254 petitioner’s claim on the merits,
however,

the

§

2254

petition

may

only

be

granted

if

the

Rodriguez also presented the direct appeal issue,
relevant here, which the court considered and dismissed.

not

adjudication:

2

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(1)

(2)

28

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
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.

U.S.C.

§

2254(d).

To

establish

that

a

state

court

unreasonably applied federal law, a petitioner must demonstrate
“that the state court’s 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, 562 U.S. 86, 103 (2011).
To demonstrate ineffective assistance of counsel, Rodriguez
must show (1) “that counsel’s performance was deficient,” and
(2)

“that

the

deficient

performance

Strickland, 466 U.S. at 687.
the

ineffective

assistance

prejudiced

the

defense.”

Because the state court addressed
claim

in

denying

Rodriguez’s

PCR

Motion, Rodriguez must establish under § 2254(d) that the state
court

unreasonably

applied

Strickland.

The

inquiry

is

thus

“whether there is any reasonable argument that counsel satisfied
Strickland’s
105.

deferential

standard.”

Harrington,

562

U.S.

at

“The standards created by Strickland and § 2254(d) are

both highly deferential and when the two apply in tandem, review

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is

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doubly

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so.”

Id.

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(internal

quotation

marks

and

citations

omitted).
Although Strickland is a two-prong test, “a court need not
determine

whether

counsel’s

performance

was

deficient

before

examining the prejudice suffered by the defendant as a result of
the alleged deficiencies. . . . If it is easier to dispose of an
ineffectiveness

claim

on

the

ground

of

lack

of

prejudice, . . . that course should be followed.”
466 U.S. at 697.

sufficient
Strickland,

Here, Rodriguez’s claim can be disposed of on

the “prejudice” prong.
To prove prejudice, “[t]he defendant must show that there
is

a

reasonable

probability

that,

but

for

counsel’s

unprofessional errors, the result of the proceeding would have
been

different.

A

reasonable

probability

is

a

sufficient to undermine confidence in the outcome.”

probability
Id. at 694.

A defendant is not prejudiced if his counsel fails to make an
objection
law[.]”

that

is

“wholly

meritless

under

current

governing

Lockhart v. Fretwell, 506 U.S. 364, 374 (1993).

B.
Rodriguez contends that his counsel was ineffective because
he failed to object to the rejection of the plea agreement and
preserve the issue for appellate review.

He argues that his

counsel should have objected and alleged a violation of federal
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due process.

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We hold, however, that an objection claiming a

violation of federal due process rights would, in this case,
have

been

wholly

meritless. 3

The

Supreme

Court

has

clearly

stated that there is no federal right that a plea be accepted by
a judge.

Missouri v. Frye, 132 S. Ct. 1399, 1410 (2012).

As a

result, Rodriguez was not prejudiced by his counsel’s failure to
object.
Rodriguez’s claim that the judge’s rejection of his plea
violated his federal due process rights is based on language in
Santobello v. New York, 404 U.S. 257, 262 (1971). Santobello
states, ”There is, of course, no absolute right to have a guilty
plea accepted.
judicial

A court may reject a plea in exercise of sound

discretion.”

Id.

(citations

omitted).

Rodriguez

asserts that this statement creates a federal due process right
that a plea only be rejected in the “exercise of sound judicial
discretion.”

3

Rodriguez also briefly argues that Rule 11 of the Federal
Rules of Criminal Procedure regulates a state judge’s ability to
reject a plea agreement.
This argument is without merit as
well.
Rodriguez’s trial was a state trial.
The Federal Rules
of Criminal Procedure apply to federal trials, not state trials.
See Fed.R.Crim.P. 1(a)(1)(“These rules govern the procedure in
all criminal proceedings in the United States district courts,
the United States courts of appeals, and the Supreme Court of
the United States.”); Wade v. Coiner, 468 F.2d 1059, 1060 (4th
Cir. 1972) (stating that state courts are not bound by Rule 11).

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This contention, however, is misplaced.

This reading of

Santobello is itself untenable, and moreover, in cases after
Santobello, the Supreme Court has made clear that there is no
federal due process right that a plea be accepted, stating, “a
defendant has no right to be offered a plea, nor a federal right
that the judge accept it.”
omitted).

Frye, 132 S. Ct. at 1410 (citations

Notably, the Court even cited Santobello in support

of this proposition.

See id.

This same language was repeated in Lafler v. Cooper, 132 S.
Ct. 1376 (2012).
1410).

In

See id. at 1387 (quoting Frye, 132 S. Ct. at

Lafler,

the

Supreme

Court

explained

how

the

Strickland standard for ineffective assistance should be applied
when an attorney errs in advising a defendant not to accept a
plea agreement.

Id.

The Court went on to explain, “If no plea

offer is made, or a plea deal is accepted by the defendant but
rejected by the judge, the issue raised here simply does not
arise.”

Id. (emphasis added).

This further demonstrates that

there is no due process right that a plea be accepted by a
judge.
In addition, this Court has also acknowledged that there is
no

constitutional

right

that

a

plea

bargain

be

accepted,

stating, “[a] defendant has no constitutional right to a plea
bargain.

Nor is there a constitutional right to have a plea

bargain, once made, accepted by the court. . . . [T]he court may
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accept

or

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reject

the

plea

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at

its

discretion.”

Fields

v.

Attorney Gen. of Md., 956 F.2d 1290, 1297 n.19 (4th Cir. 1992)
(citations

omitted).

proposition.

Again,

Santobello

was

cited

for

this

See id.

Based on the above interpretations of Santobello by the
Supreme Court and by this Court, there is not a valid argument
that

Santobello

that

a

judge

announced

accept

a

a

constitutional

plea

bargain. 4

due

For

process

this

right

reason,

an

objection to a judge’s plea rejection based on Santobello does
not have merit.

Rodriguez was therefore not prejudiced by his

attorney’s failure to make this meritless objection.

III.
Rodriguez has not demonstrated prejudice in this case.
objection

he

without merit.

contends

that

his

attorney

should

have

made

The
is

As a result, we hold that the state PCR court’s

determination that Rodriguez was not prejudiced is reasonable,
and the district court below did not err in denying Rodriguez’s

4

Rodriguez also points to Seventh Circuit precedent for his
contention that Santobello created a federal due process right
that a plea be accepted; however, the cases he cites involve
appeals from federal district courts (rather than state courts),
and the interpretation of Rule 11.
None of these cases invoke
due process in their analysis.
See, e.g., United States v.
Delegal, 678 F.2d 47, 50 (7th Cir. 1982); United States v.
Davis, 516 F.2d 574, 578 (7th Cir. 1975).

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request for relief under 28 U.S.C. § 2254.

Accordingly, the

judgment below is
AFFIRMED.

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