Case Information
*1 Before E ASTERBROOK , S YKES , and T INDER , Circuit Judges .
T INDER , Circuit Judge . Mark A. Campbell appeals from the district court’s denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254. He claims that the prosecu- tor’s comments at his resentencing hearing violated his due process rights and breached his plea agreement and that his counsel rendered ineffective assistance in failing to object. Campbell argues that the Wisconsin Court of Appeals un- reasonably applied Supreme Court precedent when it decid- *2 ed that he could not establish that counsel was ineffective in failing to object because the prosecutor had not materially and substantially breached the plea agreement. For the rea- sons that follow, we affirm.
I. Background
Campbell pleaded guilty in Wisconsin state court to one count of first degree sexual assault of a child. The victim was his then ten-year-old daughter. At the time of the offense, the maximum sentence was sixty years. Pursuant to the plea agreement, the State agreed to dismiss three other counts and recommend a sentence of no more than twenty years, with no more than five to seven years’ initial confinement and the balance as extended supervision.
The presentence investigation report recommended twenty to forty years’ initial confinement and seven to ten years’ extended supervision. At sentencing, the State rec- ommended a sentence in accordance with the plea agree- ment. The court sentenced Campbell to a bifurcated sentence of forty years, with thirty years’ initial confinement and ten years’ extended supervision. Campbell appealed, arguing that the trial court failed to consider the state sentencing guidelines. The Wisconsin Court of Appeals vacated the sen- tence and remanded for resentencing. State v. Campbell , No. 2008AP2065-CR, 2009 WL 1191945 (Wis. Ct. App. May 5, 2009).
Campbell was resentenced before a different judge. A second presentence investigation report, prepared after the remand, also recommended twenty to forty years’ initial confinement and seven to ten years’ extended supervision. At the sentencing hearing, the prosecutor presented argu- *3 ments as to the sentencing factors to be considered by the court: the gravity of the offense, Campbell’s character, and the need to protect the public. Starting with the gravity of the offense, he referred to “additional information in terms of the impact” on the victim, Sentencing Tr. 18 Aug. 25, 2009, and “the devastating impact” on the victim, id. at 19. The prosecutor said, “I can’t think of a more, short of a homicide or physically injuring a child, a more horrific offense and more damaging offense committed against one’s own child.” Id.
Addressing Campbell’s character, the prosecutor referred to letters that Campbell had written to his daughter’s thera- pist, describing them as “threat[s] and ultimatum[s]” as well as manipulative and devious in tone. Id. at 20. He also men- tioned Campbell’s claim that his sister had coached the vic- tim into saying what she had said and a letter of Campbell’s seeking to lift the no-contact order against him. According to the prosecutor, “there is absolutely no remorse. There is no empathy, and there is no accountability….” Id. The prosecu- tor noted that the presentence report indicated Campbell had been diagnosed with “a personality disorder, gender identity disorder” and argued that he had “some very seri- ous sexuality issues, very serious boundary issues.” Id. at 22.
Turning to the need to protect the public, the prosecutor argued that the need “is extremely high,” and asserted that Campbell “takes no responsibility for his behavior or his ac- tions,” and that “[h]is daughter needs to be protected from him for as long as can be humanly possible.” Then the prosecutor advised the court that “[t]he State’s original agreement back almost two years ago … was a recommen- dation of 20 years, 20-year sentence. The State doesn’t be- *4 lieve anything less than that would be appropriate for Mr. Campbell given the pattern of behavior on his part, given the contacts with his daughter’s therapist.” Id. Campbell’s counsel did not object to any part of the prosecutor’s argu- ment.
The prosecutor did not advise the court of the State’s rec- ommendation of no more than five to seven years’ initial confinement. Campbell’s counsel did not object to that omis- sion either. Instead, during his argument, defense counsel informed the court that “the plea bargain in this case was five to seven years in and the balance of 20 on extended su- pervision.” Id. at 25. Counsel argued that based on Camp- bell’s history, “that’s probably where this should fall.” Id.
The judge said that he had “listened very carefully” to the comments of the prosecutor, defense counsel, and Campbell. Id. at 28. The judge also stated that he considered the presentence investigation report’s recommendation of twenty-seven to fifty years, with twenty to forty years’ initial confinement, as well as the attorneys’ recommendations, the sentencing guidelines, and the aggravating factors that the offense was “ongoing in nature, and that [Campbell] had a position of authority and trust with the victim.” at 34. The judge sentenced Campbell to a bifurcated sentence of forty- four years, consisting of thirty-four years’ initial confinement and ten years’ extended supervision.
Campbell filed a petition for postconviction relief in state court, alleging ineffective assistance of counsel in failing to object to the prosecutor’s remarks at the sentencing hearing and in failing to object to the prosecutor’s omission of the initial confinement recommendation of no more than five to seven years. The state court held an evidentiary hearing at *5 which it heard testimony from Campbell, the counsel who represented him at the first sentencing, and counsel who represented him at the resentencing. The court found that there had been no breach of the plea agreement and alterna- tively that, if there was a breach, it was a technical breach, not a material and substantial breach. The court denied the petition for relief, concluding that Campbell could not estab- lish that counsel was ineffective in failing to object because the prosecutor had not materially breached the plea agree- ment. Campbell appealed.
Regarding the State’s failure to recommend five to seven
years’ initial confinement, the Wisconsin Court of Appeals
concluded that “Campbell has failed to prove that the State’s
conduct materially and substantially breached the plea
agreement.”
State v. Campbell
,
As for the prosecutor’s remarks at the resentencing hear-
ing, the court of appeals agreed with the circuit court that
the “remarks did not undermine the State’s sentence rec-
ommendation.” at 281 ¶ 18. While the prosecutor implic-
*6
itly had argued “for a significant sentence,” the court con-
cluded that “a twenty-year sentence is just that.”
Id.
The
Wisconsin Court of Appeals determined that Campbell had
failed to show a material and substantial breach of the plea
agreement and therefore could not establish ineffective assis-
tance of counsel in failing to object to the State’s conduct; the
court accordingly affirmed the trial court. ¶ 19. Campbell
filed a writ of certiorari with the Wisconsin Supreme Court,
which denied his petition without addressing the merits.
State v. Campbell
,
Campbell then filed a § 2254 petition, claiming that his counsel rendered ineffective assistance in failing to object to the State’s breach of the plea agreement. Although the peti- tion asserted only that the Wisconsin Court of Appeals’ deci- sion was contrary to or unreasonably applied Santobello v. New York , 404 U.S. 257 (1971), the district court interpreted the petition as claiming that the appellate court unreasona- bly applied Santobello and Strickland v. Washington , 466 U.S. 668 (1984). The district court rejected both claims and denied the petition. Campbell v. Tegels , No. 12 CV 225, 2013 WL 6044406 (W.D. Wis. Nov. 14, 2013). Campbell sought a certif- icate of appealability in this court, and one was granted on (1) whether Campbell’s due process rights were violated and his plea agreement breached by the prosecutor’s arguments at his resentencing hearing, and (2) whether Campbell re- ceived ineffective assistance of counsel because his lawyer failed to object to the prosecutor’s alleged breach.
II. Analysis
Under the Antiterrorism and Effective Death Penalty Act
of 1996 (AEDPA), we may grant a writ of habeas corpus on a
claim that a state court has adjudicated on the merits if the
*7
state court’s decision “was contrary to, or involved an un-
reasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States.” 28
U.S.C. § 2254(d)(1);
Lopez v. Smith
, No. 13-946, 2014 WL
4956764, at *1 (U.S. Oct. 6, 2014) (per curiam). “If no state
court has squarely addressed the merits of a habeas claim,
we review the claim
de novo
under the pre-AEDPA standard
of 28 U.S.C. § 2243,”
Ruhl v. Hardy
,
We review
de novo
the district court’s denial of a § 2254
petition.
Ford v. Wilson
, 747 F.3d 944, 949 (7th Cir. 2014).
“[A]lthough we technically hear this appeal from the district
court,”
id.
, we focus on “‘the decision of the last state court
to rule on the merits of the petitioner’s claim,’”
id.
(quoting
McNary v. Lemke,
A state court decision “unreasonably applies federal law
if the ‘court identifies the correct governing legal rule ... but
unreasonably applies it to the facts of the particular state
prisoner’s case.’”
McNary,
Campbell argues that the state court unreasonably ap-
plied
Santobello
and
Strickland
. Under
Santobello
, “when a
plea rests in any significant degree on a promise or agree-
ment of the prosecutor, so that it can be said to be part of the
inducement or consideration, such promise must be ful-
filled,”
Under
Strickland
, a defendant “must show that counsel’s
performance was deficient. This requires showing that coun-
sel made errors so serious that counsel was not functioning
as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment.”
When a petitioner challenges a state court’s application of Strickland under § 2254(d), our review is “doubly” defer- ential as to issues decided by the state court. Richter , 131 S. Ct. at 788. Unreasonableness under Strickland must not be equated with unreasonableness under § 2254(d). “When § 2254(d) applies, the question is not whether counsel’s actions were reasonable. The question is whether there is any rea- sonable argument that counsel satisfied Strickland ’s deferen- tial standard.” Id.
Because defense counsel did not object to the prosecu- tor’s failure to make the recommendation of five to seven years’ initial confinement and did not object to any of the prosecutor’s sentencing arguments, the habeas petition seeks relief for alleged ineffective assistance of counsel rather than a due process violation or breach of the plea agreement. Nonetheless, the Santobello issue is embedded in the Strick- land analysis. The state court and the district court correctly decided that, if there was no breach, or if any breach was not material and substantial, defense counsel’s failure to object was not ineffective assistance. Thus, we consider whether the state court unreasonably applied Santobello in deciding that the State did not materially and substantially breach the plea agreement.
Campbell asserts that the prosecutor breached the plea
agreement in two ways: first, by failing to recommend initial
confinement of five to seven years, and second, by under-
mining that recommendation with his arguments. The issue
whether a prosecutor substantially and materially breached
a plea agreement is a question of law.
See United States v.
Kelly
,
At the resentencing hearing, the prosecutor made a rec-
ommendation that Campbell receive a twenty-year sentence
but neglected to recommend an initial confinement term of
five to seven years. We have stated that “subsequent actions
by the prosecution can justify an inference that the [prosecu-
tor’s breach of a plea agreement] was indeed harmless.”
Di-
az-Jiminez
,
We now consider whether the Wisconsin Court of Ap-
peals unreasonably determined that what the prosecutor
did
say did not materially and substantially breach the plea
agreement. Although the State “is not permitted to pull the
rug out from under a defendant who has negotiated a plea
agreement by taking steps to induce the judge to give a
higher sentence,”
United States v. Hauptman
, 111 F.3d 48, 51
(7th Cir. 1997), relief is not available unless a breach is sub-
stantial,
id.
at 51–52. And as Campbell acknowledges, “
San-
tobello
does not specifically address implicit repudiations of a
plea agreement.” The Constitution does not require that a
prosecutor “enthusiastically” make an agreed-upon sentenc-
ing recommendation.
United States v. Benchimol
,
Here, the prosecutor addressed the pertinent sentencing factors that the court had to consider, and recommended a sentence of twenty years. We agree with the state court and *12 district court that the prosecutor’s remarks did not under- mine the State’s sentence recommendation and “balance[d] [the state’s] duty to convey relevant information to the sen- tencing court against its duty to honor the plea agreement.” Although the prosecutor’s arguments emphasized negative information, it seems that there wasn’t much positive to be said about Campbell or the offense. Further, the prosecutor’s arguments supported the position that a significant sentence was appropriate. A bifurcated sentence of twenty years is not an insignificant sentence, and five to seven years is not a short term of imprisonment. With one possible exception addressed below, we conclude that the state court reasona- bly determined that the prosecutor’s resentencing arguments did not materially and substantially breach the plea agree- ment. See United States v. Salazar , 453 F.3d 911, 914–15 (7th Cir. 2006) (holding that the government did not breach its plea agreement where the prosecutor referred to the defend- ant as “a cold-blooded killer” yet, consistent with the plea agreement, requested a sentence at the low end of the guide- lines range).
That said, we are most troubled by the prosecutor’s statement that Campbell’s “daughter needs to be protected from him for as long as can be humanly possible.” Such a statement might be construed as an argument for the maxi- mum sentence possible, thus undermining the bargained-for recommendation. As we know, the maximum sentence Campbell faced was sixty years, consisting of forty years’ initial confinement and twenty years’ extended supervision. See Wis. Stat. §§ 948.02(1)(b), 939.50(3)(b), 973.01(2)(b). This particular statement of the prosecutor comes close to cross- ing that “fine line” that separates the prosecutor’s conduct in conveying pertinent sentencing information from undermin- *13 ing the plea agreement. But even if this particular statement undermined the plea agreement, Campbell’s claim still fails because, as we address below, he cannot show prejudice. And even if the prosecutor’s omission of the initial confine- ment recommendation and affirmative arguments in combi- nation amounted to a material and substantial breach the plea agreement, Campbell’s inability to demonstrate preju- dice dooms his petition.
The Wisconsin Court of Appeals determined that coun-
sel’s failure to object was not deficient, and did not reach the
prejudice element of the
Strickland
test. We therefore assess
this element
de novo
.
See Porter v. McCollum
, 558 U.S. 30, 39
(2009);
Rompilla v. Beard
, 545 U.S. 374, 390 (2005). Setting
aside the circumstances in which prejudice may be pre-
sumed, which are inapplicable here, it is not enough to show
that counsel’s errors might have affected the outcome of the
proceeding.
Strickland
,
Campbell has not shown prejudice. Both presentence in- vestigation reports recommended twenty to forty years’ ini- tial confinement and seven to ten years’ extended supervi- sion. Given those recommendations, as well as the gravity of the offense perpetrated on Campbell’s own child, Camp- bell’s personal characteristics and lack of remorse and ac- countability, and the need to protect the public, no reasona- ble person could have expected that any rational judge would sentence Campbell to anything near five to seven years’ initial confinement. Indeed, at the first sentencing hearing, where the prosecutor made the bargained-for initial confinement recommendation, the judge sentenced Camp- bell to thirty years’ initial confinement. At the resentencing hearing, where the prosecutor did not make the recommen- dation, a second judge sentenced Campbell to thirty-four years’ initial confinement. These two terms are fairly close in length; neither term is anywhere near the bargained-for rec- ommendation of five to seven years. This demonstrates that there is no substantial likelihood that but for defense coun- sel’s failures to object, Campbell likely would have been sen- tenced to five to seven years’ initial confinement.
Moreover, in determining whether a petitioner has
shown prejudice, courts may consider evidence about the
actual decision-making process, provided that it is part of
the sentencing record.
See Strickland
,
given your age and the age of the victim, I think that your age at release would be approximately 70 years old, and the age of the victim would be approximately mid 40s. I think that allows the vic- tim to grow up without fear of contact with you and not only get out of her own minority … [but also] get passed young adulthood without fear of encounters with you.
I also feel this gets you to an old enough age where the risks to the public would be substantial- ly reduced because of your age. I think any less would not protect the public and also would not impact the victim.
Sentencing Tr. 36, Aug. 25, 2009. A sentence of five to seven years’ initial confinement is too short to accomplish these desired ends. The judge’s sentencing explanation further supports the conclusion that there is no likelihood that Campbell would have received a sentence of five to seven years’ initial confinement, or even a lesser sentence, had the prosecutor made the agreed-upon recommendation. Nor has Campbell shown that he likely would have received such a term of initial confinement had the prosecutor not made the arguments that Campbell maintains undermine the bar- gained-for recommendation.
III. Conclusion
The Wisconsin Court of Appeals did not unreasonably apply Strickland in determining that Campbell cannot estab- lish that his counsel was ineffective. We accordingly A FFIRM the district court’s denial of Campbell’s § 2254 petition.