Petitioner-appellant Ronald Nelson Daniel appeals the district court’s denial of habeas corpus relief as to his Texas conviction for the aggravated sexual assault of a child. Daniel contends that: (1) his guilty plea was not voluntary because his lawyer assured him he would be sentenced by a different judge; and (2) such assurance constituted ineffective assistance of counsel. We affirm the district court’s denial of relief.
Facts and Proceedings Below
Ronald Daniel molested his niece for two years beginning when she was six years old. Daniel forced her to wear a blindfold while he: (1) fondled her; (2) digitally penetrated her vagina; (3) rubbed his crotch against hers; and (4) forced her to straddle him. Daniel never had vaginal intercourse with her.
On March 4, 1994, Daniel was indicted for the aggravated sexual assault of a child. His case was assigned to the 338th District Court of Harris County, in which Judge Mary Bacon presided. Daniel had a desire to plead guilty because it would spare his niece the anguish of testifying to his acts of molestation. Daniel’s counsel, James Leitner, informed him of Judge Bacon’s reputation for imposing very harsh sentences for sexual offenders, especially where the victim was a child. Leitner advised Daniel against pleading guilty to Judge Bacon without an agreed sentence recommendation from the State, and recommended to Daniel that he plead guilty to a jury. 1 The case was set for trial on August 1, 1994. On that day, visiting Judge William Hatten was presiding instead of Judge Bacon. The prosecutor, Jay Hileman, told Leitner that the case could be reset to a date on which Judge Bacon would preside or that Judge Hatten could handle the case. Leitner consulted with Judge Brian Rains, who had served as chief prosecutor in Judge Hatten’s court. After hearing the facts of Daniel’s case, Judge Rains expressed the view that Judge Hatten would be “very fair” in sentencing Daniel. As a result, Leitner advised Daniel to plead guilty to Judge Hat-ten. When Daniel questioned whether Judge Hatten would sentence him, Leitner assured him that he would. It is undisputed that the time-honored custom of the *700 Harris County criminal courthouse is that if a defendant pleads guilty to a visiting judge he will also be sentenced by that visiting judge. On August 1, 1994, Daniel pleaded guilty before Judge Hatten to the aggravated sexual assault of a child in violation of Tex. Penal Code Ann. § 22.021(a)(1)(B).
Daniel’s sentencing hearing was held on September 16 and 19, 1994. Judge Bacon presided. Because Leitner did not want to anger Judge Bacon (and thereby harm his client) by questioning her authority, he did not object to Judge Bacon’s participation. 2 Leitner presented evidence of Daniel’s progress in receiving treatment for his pedophilia. Leitner called Daniel as a witness and the following relevant exchanges took place:
“Q You understand when you entered your plea that the Court had a range of punishment anywhere from deferred adjudication to life in the penitentiary?
A Yes.
Q You understand that no matter what happens to you in this case it’s not the Judge’s fault. It’s not anybody’s involved fault. It’s simply you.
A Yes, I do.”
Judge Bacon sentenced Daniel to the maximum penalty provided for by Texas law— life in prison and a $10,000 fine. Judge Bacon offered Daniel an opportunity to speak after sentencing, but Daniel declined.
On October 19, 1994, Daniel moved for a new trial on the grounds that: (1) Leit-ner’s assurance that Judge Hatten would be the sentencing judge rendered his guilty plea involuntary under the United States and Texas Constitutions; (2) Leit-ner’s failure to object to sentencing by Judge Bacon constituted ineffective assistance of counsel under the Texas Constitution; (3) Leitner’s assurance constituted ineffective assistance of counsel under the Texas Constitution; and (4) Daniel’s life sentence constituted cruel or unusual punishment and was foreign to due course of law under the Texas Constitution. On November 30, 1994, Judge Bacon denied the motion.
Daniel continued to advance these four issues on direct appeal. On March 13, 1997, the conviction was affirmed on direct appeal by the Court of Appeals for the Fourteenth District of Texas.
Daniel v. State of Texas,
On August 6, 1998, Daniel filed a petition for post-conviction relief in state court, arguing only that his plea was involuntary under
Brady v. United States,
On June 30, 1999, Daniel filed the instant federal petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On June 19, 2000, the district court granted *701 the State’s motion for summary judgment and dismissed the petition. The district court granted a certificate of appealability as to three issues, namely whether: (1) Daniel’s guilty plea was involuntary because of Leitner’s assurance that Judge Hatten would impose sentence; (2) Leit-ner’s assurance constituted ineffective assistance of counsel; and (3) the district court correctly concluded that the Teague doctrine precluded relief. 3 Daniel also argued in the district court that counsel was ineffective for failing to object to Judge Bacon’s participation at sentencing, but the district court did not grant a certificate of appealability on that issue, and it is therefore not before us. On July 13, 2000, Daniel filed notice of appeal to this Court.
I. Standard of Review
Daniel presented his federal Brady claim to the State on direct appeal and in his state habeas petition. The State rejected this claim without relying on a procedural bar. There appears no basis on which the State could have disposed of this claim on procedural grounds. Daniel’s Brady claim was, therefore, adjudicated on the merits in state court and is entitled to review under the deferential standard of 28 U.S.C. § 2254(d). 4
In contrast, Daniel’s ineffective assistance of counsel claims relied exclusively on state law and alleged violation only of the Texas Constitution. All three times Daniel argued his ineffective assistance of counsel claims before the state courts he specifically stated that the applicable standard was
not
that set forth in
Strickland v. Washington,
The deferential standard of section 2254(d) applies to Daniel’s
Brady
claim but not to his ineffective assistance of counsel claim. Review of the latter is governed by the principles of
Teague v. Lane,
II. Voluntariness of Daniel’s Plea
Daniel argues that his guilty plea was involuntary because it was induced by Le-itner’s unfulfilled promise that Judge Hat-ten would be the sentencing judge. In his affidavit, Daniel states: “Had I known when I waived my rights and entered a plea to Judge Hatten he was not going to assess punishment and that Judge Bacon was going to get involved in my case at sentencing, I would have pled guilty to a jury.” Daniel does not claim the existence of a plea agreement concerning the identity of the sentencing judge. Nor does he claim that he had the right to be sentenced by the judge of his choice or argue any other ground for involuntariness. The record reflects that in all other respects Daniel completely understood the consequences of his guilty plea.
Because a guilty plea involves the waiver of constitutional rights it must be voluntary, knowing and intelligent.
Brady v. United States,
“The standard as to the voluntariness of guilty pleas must be essentially that defined by Judge Tuttle of the Court of Appeals for the Fifth Circuit:
‘[A] plea of guilty entered by one fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel, must stand unless induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises
*703 that are by their nature improper as having no proper relationship to the prosecutor’s business (e.g.bribes).’ ” Id. at 1472 (inside quotation marks omitted). 8
See also United States v. Amaya,
Where a defendant can show that the court, the prosecutor or defense counsel induced his guilty plea by clearly and unequivocally
guaranteeing
a lesser sentence or some other specific leniency, the guilty plea is not voluntary unless the defendant receives that which he was promised.
See Amaya,
A guilty plea is not rendered involuntary by the defendant’s mere subjective understanding that he would receive a lesser sentence. In other words, if the defendant’s expectation of a lesser sentence did not result from a promise or guarantee by the court, the prosecutor or defense counsel, the guilty plea stands.
See Spinelli v. Collins,
Likewise, a guilty plea is not rendered involuntary because the defendant’s misunderstanding was based on defense counsel’s inaccurate
prediction
that a lesser sentence would be imposed.
See Harma-son v. Smith,
The district court found that, although Leitner did assure Daniel that if he pleaded guilty to Judge Hatten he would be sentenced by Judge Hatten, Daniel’s case was like those in which counsel predicts that a proposed course of action will
probably
result in a lesser sentence. We agree with the district court that the
substance
of Leitner’s statement requires its treatment as a “prediction, prognosis, or statement of probabilities”, not a clear and unequivocal guarantee of a lesser sentence.
Harmason,
First, we think that the only reasonable lay person’s understanding of Leitner’s assurance that Judge Hatten would impose sentence is as a prediction, not an unqualified guarantee. Indeed, there are many obvious circumstances that any reasonable lay person would recognize as ones resulting in Judge Hatten not presiding at sentencing. 9 Daniel knew there would be a delay of several weeks between entry of his guilty plea and sentencing. In that time, Judge Hatten could have died, become ill or disabled (temporarily or longer term) or retired and moved to Palm Beach County, Florida, or the like. 10
Second, even if we construe Leitner’s statement as guaranteeing that Judge Hatten would be the sentencing judge, its substantively predictive, probabilistic character precludes relief. Leitner did not guarantee any of the substantive benefits that this Court has indicated could form the basis for a Brady involuntariness claim, such as: (1) a downward departure at sentencing; 11 (2) a lesser sentence; 12 or (3) parole, commutation or pardon after a certain period of incarceration. 13 Leit-ner “promised” nothing more than what he predicted would be a better roll of the sentencing dice. There was no guarantee that Judge Hatten would have sentenced Daniel less harshly than Judge Bacon. Any value of Leitner’s promise was wholly dependent on the probability that Judge Hatten would impose a less severe sentence than Judge Bacon would. The statement “you will probably be sentenced by Judge Hatten, and he will probably sentence you less harshly than would Judge Bacon” is not in this respect materially different from “you will definitely be sentenced by Judge Hatten, and Judge Hat-ten will probably sentence you less harshly than would Judge Bacon.” In neither case has a light or lighter (or particular) sentence been promised.
Leitner’s assurance that Judge Hatten would be the sentencing judge simply lacked the requisite certainty as to actual sentencing benefit to render Daniel’s plea involuntary under Brady. Daniel concedes, as he must, that he has no right to be sentenced by the judge of his choice and that Judge Bacon had jurisdiction to sentence him. Leitner’s assurance merely gave rise to the hope of leniency. We are *705 not aware of any case vacating a guilty plea because the defendant was promised sentencing by a judge his lawyer 'predicted would be lenient. At the sentencing hearing before Judge Bacon, Daniel testified that he was aware that he could be sentenced to life in prison. Daniel’s guilty plea was knowing and voluntary.
This Court has interpreted the AEDPA, 28 U.S.C. § 2254(d), as only allowing the Supreme Court to announce new rules for purposes of federal habeas.
Williams v. Cain,
III. Ineffective Assistance of Counsel
Daniel claims that Leitner’s assurance that Judge Hatten would impose sentence constituted ineffective assistance of counsel which rendered his plea involuntary. Daniel’s ineffective assistance claim is basically a repeat of his voluntariness claim, except that now the emphasis is on Leit-ner’s statement as bad advice, not as a broken promise.
As previously noted, the merits of this federal ineffective assistance of counsel claim were not ruled on by (because specifically withheld from) the state courts, so the claim is not governed by section 2254(d).
14
Review of this claim is hence governed by the principles set forth in
Teague v.
Lane,
As Daniel did not file a petition for certiorari with the United States Supreme Court, his conviction became final on November 11, 1997, ninety days after the Texas Court of Criminal Appeals denied his petition for discretionary review. We now survey the legal landscape as it then existed to determine if a state court would have felt compelled by then existing federal law to provide the relief Daniel seeks.
In
Strickland v. Washington,
According to the affidavit of Judge Rains, it was the custom and practice in Harris county that the judge who accepted the defendant’s plea would also impose sentence. Daniel does not dispute that this was in fact the case. In advising Daniel to plead guilty to Judge Hatten, it would certainly have been better for Leitner to explain this longstanding practice and that it was very likely (but not certain)
*706
that Judge Hatten would impose sentence; however, Leitner’s failure to so explain did not transform Leitner’s otherwise good advice into deficient performance. In other words, in light of the undisputedly accurate information Leitner possessed after his discussion with Judge Rains and due to the inherent predictive, probabilistic nature of his assurance that Judge Hatten would impose sentence, Leitner’s advice was not so far off the mark as to fall “outside the wide range of professionally competent assistance.”
Strickland,
Daniel never formally addresses the prejudice element of Strickland, but we glean from his briefs that he finds prejudice in the waiver of his Texas statutory right to be sentenced by a jury, which Daniel attributes to Leitner’s bad advice. The record indicates that Daniel was determined to plead guilty and he concedes that he has no federal constitutional or federal statutory right to be sentenced by a jury.
Strickland generally defined prejudice as “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”
Id.
at 2068. However,
Strickland
expressly left open the question of the proper standard for claims of ineffective assistance at noncapital sentencing proceedings.
Id.
at 2064.
15
This Court has held that in the noncapital sentencing context, prejudice requires a showing of a reasonable probability that, absent counsel’s unprofessional errors, the noncapital sentence would have been
“significantly
less harsh.”
Spriggs v. Collins,
Daniel’s claim that counsel’s deficient performance resulted in a non-preferred sentencing proceeding is not precisely the same as claiming ineffective assistance during a particular sentencing proceeding. However, advice concerning the choice of sentencing proceeding certainly constitutes assistance in the noncapital sentencing context and is, therefore, governed by the principles set forth in Spriggs. Daniel does not even attempt to make the Spriggs-required showing that the jury would have sentenced him significantly less harshly than Judge Bacon.
The Supreme Court has elaborated on
Strickland’s
prejudice requirement in two other potentially relevant situations. First, in
Hill,
the Supreme Court applied
Strickland
to claims of ineffective assistance arising out of the plea process.
Hill v. Lockhart,
Significantly, Daniel had a choice not open to Hill: sentencing by a jury. Hill should not be read as a definitive statement from the Supreme Court that defendants in Daniel’s situation can only establish prejudice by claiming they would have stood trial. Hill does not itself necessarily foreclose Daniel’s prejudice argument. However, Hill’s silence concerning Daniel’s unique situation is inadequate to render a finding of prejudice dictated by existing precedent, especially in light of our decision in Spriggs.
Second, in
Roe v. Flores-Ortega,
A state court would not have been compelled by precedent existing when Daniel’s conviction became final to find that Leit-ner’s performance was constitutionally deficient or that the alleged deficiency in Leitner’s performance resulted in prejudice. Thus,
Teague’s
non-retroactivity rule precludes relief unless the new rules Daniel seeks fall into one of the exceptions to the rule. The two exceptions are for new rules that: (1) place certain kinds of “primary, private individual conduct beyond the power of the criminal law-making authority to proscribe”; or (2) are implicit in the concept of ordered liberty.
Fisher,
As to deficient performance, Leitner’s statement that Judge Hatten would be the sentencing judge was clearly reasonably based on the longstanding custom of the Harris County courts. His failure to foresee that in this one instance it would not (for some unknown reason) be followed, or to be more precise in his explanation, does not call into question protections implicit in the concept of ordered liberty.
Likewise, Daniel cannot show prejudice under any plausible standard. In his affidavit, Daniel states that if he had known Judge Bacon would sentence him instead of Judge Hatten, he would have pleaded guilty to the jury. Leitner’s alleged deficient performance concerned his purported assurance that Judge Hatten would impose sentence, not his failure to predict that time-honored custom would be abandoned. In other words, but for the deficient component of counsel’s advice, Daniel would have been told that, based on custom in the Harris County criminal courthouse, Judge Hatten would probably impose sentence. Daniel would not have been told that Judge Bacon would impose sentence. Had Leitner completely explained the time-honored custom of Harris County and advised Daniel to plead guilty to Judge Hatten, it seems very likely that Daniel would have accepted that advice. He did not state otherwise in his affidavit, briefs or at oral argument, and there is nothing in the record that suggests Daniel may have rejected such advice. A rule that allowed a finding of prejudice where there is absolutely no evidence that, absent counsel’s deficient performance, the defendant would have proceeded any differently would be directly contra to Strickland, Hill and Flores-Ortega and is unquestionably not implicit in the concept of ordered liberty.
Daniel has failed to establish deficient performance or prejudice. The district court’s grant of summary judgment for the State as to Daniel’s ineffective assistance claim is affirmed.
Conclusion
For the foregoing reasons, the district court’s dismissal of Daniel’s habeas petition is
AFFIRMED.
Notes
. In Texas, if the punishment for an offense is not absolutely fixed by law, the defendant may plead guilty and have the jury assess punishment. See Tex.Crim. Proc.Code Ann. § 26.14.
. Judge Hatten would have had jurisdiction to sentence Daniel.
See Johnson v. Bussey,
. The district court only engaged in a
Teague v. Lane,
.
See Green v. Johnson,
28 U.S.C. § 2254(d) provides:
"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(b)(1) provides, in relevant part:
*702 "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 unless it appears that—
(A) the applicant has exhausted the remedies available in the courts of the State;”.
. 28 U.S.C. § 2254(b)(2) provides: "An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.”
.
See Graham v. Johnson,
Of course, this court has discretion to hold that the State’s silence has effected a waiver of the exhaustion requirement where failure to so hold would result in "unnecessary delay in granting relief that is plainly warranted.”
Granberry v. Greer,
. Citing
Shelton v. United States,
. It is not known why Judge Hatten did not preside at Daniel’s sentencing hearing.
. We do know he did not die, retire or suffer an illness or a disability which lasted from before sentencing until October 1998 (when he ruled on Daniel’s state habeas petition).
There is no evidence that Leitner told Daniel that if for any reason Judge Hatten did not sentence Daniel then nevertheless some judge other than Judge Bacon would be the sentencing judge.
.
See United States v. Amaya,
.
See Harmason,
.
See Davis v. Butler,
. The claim is thus unexhausted. But, as we have earlier observed, the State has neither raised nor expressly waived exhaustion, and hence we may deny relief on this claim. See notes 5, 6, and 7 and accompanying text supra. We also note that .the State does not urge that this claim has been procedurally defaulted.
. Strickland states in this respect:
“We need not consider the role of counsel in an ordinary sentencing, which may involve informal proceedings and standard-less discretion in the sentencer, and hence may require a different approach to the definition of constitutionally effective assistance. A capital sentencing proceeding like the one involved in this case, however, is sufficiently like a trial in its adversarial format and in the existence of standards for decision ... (citations omitted) that counsel’s role in the proceeding is comparable to counsel's role at trial-to ensure that the adversarial testing process works to produce a just result under the standards governing decision." Id.
. In
Spriggs
we noted that "one foreseeable exception to this requirement” (of showing that but for counsel’s error the sentence likely would have been
significantly
less harsh) "would be when a deficiency by counsel resulted in a specific, demonstrable enhancement in sentencing — such as an automatic increase for a 'career' offender or an enhancement for use of a handgun during a felony — which would not have occurred but for counsel’s error”.
Id.
at 89 n. 4. That potential exception was held inapplicable in
Spriggs,
and is likewise plainly inapplicable here. In
United States v. Phillips,
.However,
Glover
can also be fairly read as applying the
Spriggs
exception described in note 16,
supra.
In
Glover
the Court assumed
arguendo
that counsel's deficient performance in respect to whether the offenses of convic
*707
tion should be grouped for purposes of the guidelines led to an improper guideline range increase of from 63 to 78 months to 78 to 97 months, and the defendant’s sentence was 84 months.
Id.,