David Anaya v. Bobby Lumpkin, Director, 976 F.3d 545

Background

Late-night confrontation after a club fight: Anaya shot at a car of teenagers, killing one; he admitted shooting but asserted self-defense.
Anaya was a felon in possession of a firearm at the time, which under Texas law permits the jury to consider failure to retreat and removes a presumption that deadly-force belief was reasonable.
The State offered a plea (30 years for murder; 15 years for aggravated assault); Anaya rejected it and went to trial, where he was convicted and received much longer sentences.
Anaya later claimed his trial counsel, Rus Bailey, misadvised him during plea discussions by failing to inform him that his felon-in-possession status would allow the jury to consider his failure to retreat—an alleged Strickland ineffective-assistance claim focused on plea-stage advice.
State habeas petitions were denied without written orders; federal habeas was denied by the district court; the Fifth Circuit granted a COA limited to whether counsel’s misdescription of self-defense law impaired Anaya’s plea decision.
The Fifth Circuit held counsel deficient on performance (Strickland) but, applying §2254(d) deference and ambiguity about the Frye prejudice burden, affirmed because Anaya failed to meet the prejudice standard on collateral review.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Counsel performance at plea stage	Bailey failed to advise that felony status allowed jury to consider failure to retreat; omission was not strategic and deprived Anaya of informed choice	Bailey said decision to go to trial was Anaya’s; no guaranteed outcome; affidavit contesting some claims	Court: Counsel’s silence on retreat law was unreasonable under Strickland (and Padilla/Hinton/Lafler); performance prong satisfied
Prejudice from rejecting plea (Frye three-part test)	But for counsel’s error, Anaya would have accepted plea; affidavits support this; plea would have been entered; result would be more favorable	Post‑hoc affidavits insufficient per Lee; defendant must prove plea would have been entered and court/prosecutor wouldn’t have withdrawn it	Court: Lee’s contemporaneous-evidence rule does not control rejected-plea Frye claims; Anaya could show part one and three, but due to unsettled law on part two and §2254(d) deference, prejudice not established on collateral review
Standard of review for state-court denial under §2254(d)	State denial should yield if Strickland error clearly prejudiced Anaya	State court’s merits adjudication merits deference; relief requires showing an unreasonable application of Supreme Court law	Court: Applied doubly deferential standard; found performance error but could not grant relief because state-court adjudication on prejudice was not unreasonable under §2254(d)
Burden to show plea would have been entered (Frye part two)	Defendant need not supply affirmative contemporaneous proof beyond credible assertions and absence of intervening facts	Burden is on defendant to show prosecution/court would not have prevented entry; must produce evidence	Court: Circuit precedent places burden on defendant but it is unclear whether affirmative proof is required; ambiguity means fairminded jurists could disagree, so §2254(d) bars relief

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (ineffective-assistance two‑prong test)
Padilla v. Kentucky, 559 U.S. 356 (counsel must advise on clear, readily ascertainable consequences)
Missouri v. Frye, 566 U.S. 134 (prejudice framework for rejected plea offers)
Lafler v. Cooper, 566 U.S. 156 (application of Frye framework; prejudice from rejected plea)
Lee v. United States, 137 S. Ct. 1958 (contemporaneous-evidence guidance for claims challenging accepted pleas; distinguished here)
Hinton v. Alabama, 571 U.S. 263 (attorney ignorance of law/failure to investigate can be unreasonable)
Hill v. Lockhart, 474 U.S. 52 (prejudice standard for attacking accepted guilty pleas)
Harrington v. Richter, 562 U.S. 86 (§2254(d) deference to state-court decisions)