Jump To

Top Caption [Combined Opinion

                    by Sykes](https://www.courtlistener.com/opinion/10803635/michael-connor-v-brittany-greene/about:blank#o1)

Support FLP

CourtListener is a project of Free
Law Project, a federally-recognized 501(c)(3) non-profit. Members help support our work and get special access to features.

Please become a member today.

Join Free.law Now

March 3, 2026 Get Citation Alerts Download PDF Add Note

Michael Connor v. Brittany Greene

Court of Appeals for the Seventh Circuit

• Citations: None known
• Docket Number: 23-1595

• Judges: Sykes

• Opinion

• Authorities (12)

• Cited By (0)

• Summaries (0)

• Similar Cases (2.2K)

• PDF

Combined Opinion

                        by [Diane S. Sykes](https://www.courtlistener.com/person/3156/diane-s-sykes/)

In the

United States Court of Appeals
for the Seventh Circuit

---

No. 23-1595
MICHAEL J. CONNOR,
Petitioner-Appellant,
v.

BRITTANY GREENE, *
Respondent-Appellee.

---

Appeal from the United States District Court
for the Central District of Illinois.
No. 20-CV-1126 — Colin S. Bruce, Judge.

---

ARGUED DECEMBER 8, 2023 — DECIDED MARCH 3, 2026

---

Before RIPPLE, ROVNER, and SYKES, Circuit Judges.
SYKES, Circuit Judge. Michael Connor was convicted in
2013 of five counts of predatory criminal sexual assault of a
child following a bench trial in Livingston County, Illinois.
The assaults occurred from 2008 to 2011 when the victims—
his daughter and stepdaughter—were between five and

• Žȱ‘ŠŸŽȱœž‹œ’žŽȱ›’ĴŠ—¢ȱ ›ŽŽ—Žǰȱ˜——˜›Ȃœȱ™›ŽœŽ—ȱ Š›Ž—ǰȱŠœȱ‘Žȱ respondent, replacing Anthony Willis. See FED. R. APP. P. 43(c)(2). 2 No. 23-1595

seven years old. The penalty for this offense is 6 to 60 years in
prison, and sentences for multiple convictions must be served
consecutively. The penalty increases, however, to a manda-
tory term of life in prison when the offender is convicted of
assaulting more than one child. The trial judge sentenced
Connor to the mandatory life term.
After an unsuccessful direct appeal, Connor sought post-
conviction relief in state court. With the assistance of new
counsel, he claimed that his trial attorneyȂœȱ™Ž›˜›–Š—ŒŽȱŠȱ‘Žȱ
plea-bargaining stage was constitutionally ineffective. More
specifically, he alleged that his counsel had failed to inform
him that he faced a mandatory life sentence if convicted of
assaulting both victims. That omission, he claimed, led him to
reject an offer from the prosecutor of an 18-year sentence if he
pleaded guilty.
At a hearing on the petition, Connor testified that he
would have accepted the plea offer had his attorney advised
him about the possible mandatory life sentence. The trial
judge rejected his testimony as incredible because Connor
had steadfastly maintained his innocence throughout the pro-
ceedings—including at sentencing when he professed his in-
nocence and declared unequivocally that he would not have
pleaded guilty to get a lesser sentence even if he had known
the outcome of the trial. The judge therefore denied postcon-
viction relief, ruling that Connor failed to show a reasonable
probability that he would have pleaded guilty but for coun-
œŽ•Ȃœȱ™Ž›˜›–Š—ŒŽ. The Illinois Appellate Court affirmed.
Connor petitioned for federal habeas review under
28 U.S.C. § 2254. The district judge denied relief. He was right
to do so. A œŠŽȱŒ˜ž›Ȃœȱactual findings are presumed correct
on federal habeas review and may not be disturbed unless the
No. 23-1595 3

state prisoner rebuts the presumption by clear and convincing
evidence. 28 U.S.C. § 2254 (e)(1). Credibility findings are enti-
tled to particularly great deference. The state court found
ConnorȂœ testimony unbelievable because it flatly contra-
dicted unambiguous statements he had made earlier in the
case. That negative credibility finding is both presumptively
correct and well supported by the record. Connor has not
clearly and convincingly rebutted it. We affirm the judgment.
I. Background
Michael Connor and Amanda Garcia have two daughters:
La.C., born in 2004, and Le.C., born in 2006. Michael, Amanda,
and their daughters lived together from 2004 to 2010. Garcia
has another daughter from a prior relationship, Z.T., born in
2003, who also lived with them.
The couple split up in 2010. In August 2011 Garcia took
La.C. to a counselor because she had expressed thoughts of
homicide and death. The counselor asked Garcia if La.C. had
ever been sexually abused. Garcia did not think so at first but
soon started suspecting that Connor may have sexually
abused the girls. She called the police to report her suspicions,
and a forensic interviewer met with all three children.
A few days later, the Livingston County StateȂœȱ˜›—Ž¢ȱ
charged Connor with five counts of predatory criminal sexual
assault of a child in violation of chapter 720, section 5/12-14.1
of the 2010 Illinois Compiled Statutes. 1 The counts were
grouped by victim and charged in two separate charging doc-
uments—three counts for assaults against Z.T. between 2008

1 ‘Žȱ˜ěŽ—œŽȱ‘Šœȱœ’—ŒŽȱ‹ŽŽ—ȱ›ŽŒ˜’ꮍȱŠȱchapter 720, section 5/11-1.40 of

the Illinois Compiled Statutes. We refer to the 2010 statutes.
4 No. 23-1595

and 2009, and two counts for assaults against La.C. between
2010 and 2011.
Each charging document correctly listed the penalty for
the offense: 6 to 60 years in prison. 720 ILL. COMP. STAT. 5/12-
14.1(b)(1). Sentences for multiple convictions must run con-
secutively, 730 ILL. COMP. STAT. 5/5-8-4(d)(2), and the penalty
increases to a mandatory term of life in prison if the offender
is convicted of assaulting two or more victims, 720 ILL. COMP.
STAT. 5/12-14.1(b)(1.2). Neither charging document specifi-
cally mentioned the mandatory life term—probably because
the counts involving each victim were charged in separate in-
struments. Still, the penalty enhancement is contained within
the statute creating the crime, and the charging documents
correctly listed that statute.
Though the counts against each victim were separately
charged, the cases proceeded together. At arraignment the
prosecutor correctly announced the penalty for this crime as
6 to 60 years, with the sentences to run consecutively. The
prosecutor repeated this warning at the preliminary hearing,
and the judge added this explanation: “That means you are
facing six to 60 in one case. That would be served. And then
another six to 60 in another case.” Connor indicated that he
understood and had no questions about the range of penalties
he faced. The judge did not, however, mention the mandatory
life sentence if Connor was convicted of assaulting both vic-
tims.
Connor maintained his innocence throughout the pro-
ceedings. He waived his right to a jury trial, and in 2013 the
charges were tried to the court. The prosecutor presented tes-
timony from Z.T. and La.C. and introduced their videotaped
interviews. The prosecutionȂœȱ ŒŠœŽȱ Š•œ˜ȱ ’—Œ•žŽȱ Žœ’–˜—¢ȱ
No. 23-1595 5

from a nurse who examined the girls in November 2011, a few
months after the charges were issued. The nurse found no vis-
ible signs of abuse, but she testified that La.C., who was just
six years old when the examination occurred, tested positive
for chlamydia, a sexually transmitted disease.
Connor testified in his own defense, telling the court that
his relationship with Garcia deteriorated in August 2011,
shortly before the charges were issued. He theorized that
Garcia had coached the children into making the accusations
against him.
The judge found Connor guilty on all counts. Immediately
after the verdict, the prosecutor asked the court to revoke
˜——˜›Ȃœ bond, noting that the convictions carried a manda-
tory term of life in prison. The judge granted the motion and
›ŽŸ˜”Žȱ ˜——˜›Ȃœȱ ‹˜—ǯȱ Connor filed several posttrial mo-
tions, including one for a new trial. Among other claims, he
Š›žŽȱ‘Šȱ‘Žȱ“žŽȂœȱŠ’•ž›Žȱ˜ȱadvise him of the possible
mandatory life sentence violated his right to due process. The
judge denied the motion.
At sentencing Connor continued to assert his innocence,
saying this during his allocution:
I told the truth, and yet I stand here facing sen-
Ž—Œ’—ȱ˜›ȱŠȱŒ›’–Žȱ ȱ’—ȂȱŒ˜––’ǯȱ… The thing
[is,] even if I had known the outcome of a guilty
verdict in this[,] I still would have not changed
my plea because simply I cannot bring myself to
Š–’ȱ˜ȱœ˜–Ž‘’—ȱ ȱ“žœȱ’—Ȃȱ˜ȱ“žœȱ˜ȱŽȱŠȱ
lesser sentence.
The judge sentenced Connor to a 30-year prison term on
one count involving Z.T. and the mandatory life term on one
6 No. 23-1595

count involving La.C. The remaining counts were merged
into the judgment. The Illinois Appellate Court affirmed on
direct appeal.
Through new counsel, Connor petitioned for state post-
conviction relief, raising a Sixth Amendment claim for viola-
tion of his right to the effective assistance of trial counsel. As
›Ž•ŽŸŠ—ȱ‘Ž›Žǰȱ‘ŽȱŒ‘Š••Ž—Žȱ‘’œȱŠ˜›—Ž¢Ȃœȱ™Ž›˜›–Š—ŒŽ at the
plea-bargaining stage of the case. He claimed that his counsel
failed to tell him about the possible mandatory life sentence.
He further alleged that the prosecutor had offered an 18-year
sentence if he pleaded guilty and that he would have accepted
the offer had his counsel properly advised him.
The trial judge held an evidentiary hearing on the petition,
at which Connor and his mother testified. Connor told the
judge that at no time before trial did his attorney advise him
that he faced a mandatory life sentence. He further testified
that he and his parents met with his attorney to discuss the
™›˜œŽŒž˜›ȂœȱŗŞ-year plea offer, and his attorney told him he
faced a sentencing range of 6 to 30 years in prison, of which
he would serve 85 percent. (Recall that the statutory maxi-
mum for this crime is 60 years, not 30.) His attorney made no
mention of the mandatory life sentence. Connor testified that
he then discussed the plea offer with his family, and they
agreed that because he was a first-time offender, any sentence
would likely fall at the low end of the range of 6 to 30 years—
at most, 12 years in prison—so the 18-year plea offer seemed
too high. With their support, he rejected the plea bargain.
˜——˜›Ȃœ postconviction attorney asked him if he would
have accepted the 18-year plea deal if his attorney had ad-
vised him about the mandatory life sentence. Connor replied
that he would have taken the deal even though he was
No. 23-1595 7

innocent, saying: ”I ˜ž•—Ȃȱ‘ŠŸŽȱŠ–‹•Žȱwith my life on
it. Even innocent, you know, you go for life you will never see
anything again.”
˜——˜›Ȃœȱ™˜œŒ˜—Ÿ’Œ’˜—ȱcounsel also asked him to explain
his statement at the sentencing hearing when he told the
judge that he would not have changed his plea to get a lesser
sentence even if he knew he would be found guilty at trial.
Connor said that when he prepared that statement before
sentencing, he was “under the assumption that I was doing
œ’¡ȱ ˜ȱ řŖǯȱ ȱ ’—Ȃȱ ”—˜ ȱ Š‹˜žȱ ‘Žȱ •’Žȱ ž—’•ȱ ȱ ŒŠ–Žȱ ˜ȱ
sentencing.” When he found out about the mandatory life
sentence at the sentencing hearing, he “just kind of stuck to”
what he had written because he was nervous. On cross-
examination Connor said he was confident in his innocence
and believed he had a strong defense.
˜——˜›Ȃœȱmother similarly testified that ‘Ž›ȱœ˜—Ȃœȱtrial law-
yer did not mention the mandatory life sentence during the
meeting to discuss the plea offer. She also testified that if she
had known that her son faced a life sentence, she would have
recommended that he accept the 18-year plea deal. She con-
ceded on cross-examination that Connor had continuously
professed his innocence, never expressing a willingness to
plead guilty.
ConnorȂœȱ trial attorney did not testify. Nor did Connor
provide any details about the plea offer. He did not explain,
for example, which assaults he would have admitted, how the
proposed 18-year sentence would be structured, or whether
the plea deal could have been presented to the court in a way
that the judge would find acceptable.
8 No. 23-1595

The judge denied the postconviction petition, assuming
for the sake of argument ‘Šȱ›’Š•ȱŒ˜ž—œŽ•Ȃœȱ™Ž›˜›–Š—ŒŽȱhad
been deficient and holding that Connor had failed to prove
prejudice. To prevail on a Sixth Amendment claim of ineffec-
tive assistance of counsel in the plea-bargaining context, the
defendant must establish a reasonable probability that he
˜ž•ȱ‘ŠŸŽȱ™•ŽŠŽȱž’•¢ȱ‹žȱ˜›ȱŒ˜ž—œŽ•ȂœȱŽ’Œ’Ž—ȱ™Ž›˜›Ȭ
mance. Missouri v. Frye, 566 U.S. 134, 147 (2012). The judge
held that Connor had not made this showing. She expressly
rejected his postconviction testimony, finding that he “was
not a credible witness” and “seemed to be saying what he
needed to say or more accurately [seemed to be] answering
‘’œȱŠ˜›—Ž¢ȂœȱšžŽœ’˜—œȱŠœȱ‘Žȱ—ŽŽŽȱ˜ǯȄȱThe judge also ex-
plained that ˜——˜›ȂœȱŽœ’–˜—¢ squarely contradicted other
evidence in the record—notably his own unambiguous decla-
ration at sentencing that he was innocent and would not have
pleaded guilty to get a lesser sentence even if he had known
that he would be convicted at trial.
The judge rejected ˜——˜›Ȃœȱ effort to explain away this
statement. He testified in the postconviction proceeding that
he did not mean what he said in allocution because he did not
learn about the mandatory life sentence until the sentencing
hearing and simply stuck to his prepared remarks. Yet in his
motion for a new trial—filed more than four months before
sentencing—he argued that he should receive a new trial be-
cause the judge had not advised him of the possibility of a
mandatory life sentence. So he knew about the mandatory life
sentence well before sentencing, contrary to his claim in his
postconviction testimony.
Finally, the judge noted that Connor “was advised on
more than one occasion that he faced a sentencing range of
No. 23-1595 9

6 to 60 years on each case and the sentences would run con-
secutive to each other.” Assuming he received a sentence in
the middle of each range, that meant he faced a de facto life
sentence:
For all practical purposes, [Connor] was well
aware [when he rejected the plea deal] there
was a very real and likely possibility that given
the consecutive sentences, he could spend the
rest of his life in prison.
…
[He] was willing to risk what would effectively
be a life sentence … rather than plead guilty in
exchange for an 18-year sentence.
Accordingly, the judge concluded that Connor had failed to
prove prejudice because he had not shown a reasonable prob-
ability that he would have pleaded guilty ‹žȱ˜›ȱ‘’œȱŒ˜ž—œŽ•Ȃœȱ
deficient performance.
The Illinois Appellate Court affirmed, accepting the
“žŽȂœȱcredibility findings and agreeing that the record con-
›Š’ŒŽȱ ˜——˜›Ȃœȱ ™˜œŒ˜—Ÿ’Œ’˜—ȱ Žœ’–˜—¢ȱ ˜› essentially
the same reasons. The appellate court added some analysis of
its own. Connor had claimed at his postconviction hearing
that he thought he faced a prison term of 6 to 30 years based
on his meeting with his attorney about the plea offer. The
court noted that this claim was contradicted by the charging
documents, both of which listed the correct term of 6 to
60 years, as well as the record, which confirmed that Connor
had been advised at several hearings that he faced 6 to
60 years.
10 No. 23-1595

The appellate court noted the obvious disparity between
the 18-year plea offer and a life sentence; the court also
acknowledged that a discretionary de facto life sentence is not
the same as a mandatory life sentence. The court reasoned,
however, that the disparity could not ˜ŸŽ›Œ˜–Žȱ ˜——˜›Ȃœȱ
continuous insistence that he was innocent, his belief that he
had a strong defense, and his firm declaration at sentencing
that he would not have pleaded guilty even if he had known
the outcome of trial. Applying the general framework of
Strickland v. Washington, 466 U.S. 668 (1984), and the specific
requirements of Frye, the appellate court held that Connor
had not shown that he would have pleaded guilty but for his
Œ˜ž—œŽ•ȂœȱŽ’Œ’Ž—ȱ™Ž›˜›–Š—ŒŽǯ The Illinois Supreme Court
declined review.
Connor then turned to federal court with a petition for ha-
beas review under § 2254. Because the state courts had cor-
rectly cited and reasonably applied the legal standards in
Strickland and Frye, ˜——˜›Ȃœ petition turned entirely on
§ 2254(d)(2), which permits federal habeas relief only if the
Š™™•’ŒŠ—ȱŽœŠ‹•’œ‘Žœȱ‘Šȱ‘ŽȱœŠŽȱŒ˜ž›ȂœȱŽŒ’œ’˜—ȱ Šœȱ‹ŠœŽȱ
on an unreasonable determination of the facts.
Importantly here, the habeas statute implements this al-
ready deferential standard of review with yet another layer of
deference. Under § 2254(e)(1), a œŠŽȱŒ˜ž›ȂœȱŠŒžŠ•ȱ’—’—œȱ
are presumed correct, and the applicant must rebut the pre-
sumption by clear and convincing evidence.
The district judge denied ˜——˜›Ȃœȱ ȗȱ ŘŘśŚȱ petition, con-
cluding that he had not met his burden to rebut the presump-
tion. But the judge authorized an appeal, see 28 U.S.C.
§ 2253 (c)(2), finding that reasonable jurists could disagree
about whether the disparity between the 18-year plea offer
No. 23-1595 11

and a mandatory life sentence is enough to overcome the state
Œ˜ž›Ȃœȱnegative credibility finding.
II. Discussion
Federal collateral review of state criminal judgments is
highly deferential: a federal court may not grant habeas relief
from a state criminal judgment ž—•Žœœȱ‘ŽȱœŠŽȱŒ˜ž›ȂœȱŽŒ’Ȭ
sion (1) was “contrary to” or “an unreasonable application of”
clearly established federal law, § 2254(d)(1); or (2) “was based
on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding,”
§ 2254(d)(2). These steep standards of review “were designed
to prevent federal habeas retrials and to ensure that state-
court convictions are given effect to the extent possible under
law.” Dassey v. Dittmann, 877 F.3d 297, 301 (7th Cir. 2017) (en
banc) (quotation marks omitted). Žȱ›ŽŸ’Ž ȱŠȱ’œ›’Œȱ“žŽȂœ
decision denying relief de novo and focus our attention on the
“last reasoned state court decision to decide the merits of the
case.” Pierce v. Vanihel, 93 F.4th 1036, 1044 (7th Cir. 2024).
˜——˜›Ȃœȱ habeas claim rests on § 2254(d)(2): he focuses
œ˜•Ž•¢ȱ ˜—ȱ ‘Žȱ œŠŽȱ Œ˜ž›œȂȱ ŠŒžŠ•ȱ ’—’—œǯȱ ‘Šȱ –ŽŠ—œȱ ‘Žȱ
faces the additional hurdle of § 2254(e)(1), which Šœȱ ŽȂŸŽȱ
noted applies a presumption of correctness to a state courtȂœ
factual findings—a presumption that can be overcome only
by clear and convincing evidence. And because Connor asks
us to disturb a state-court credibility finding, his burden is
heavier still. On federal habeas review, we give “great
deference” to ‘Žȱ œŠŽȱ Œ˜ž›Ȃœȱ credibility determinations,
Gambaiani v. Greene, 137 F.4th 627, 640 (7th Cir. 2025), which
“are notoriously difficult to overturn,” Sanders v. Radtke,
48 F.4th 502, 511 (7th Cir. 2022) (quotation marks omitted).
12 No. 23-1595

Under these standards of review, “federal habeas relief
from state convictions is rare.” Dassey, 877 F.3d at 302. “It is
reserved for those relatively uncommon cases in which state
courts veer well outside the channels of reasonable decision-
making about federal constitutional claims.” Id.
The merits legal standard under Strickland is also highly
deferential. A defendant raising a Sixth Amendment claim of
ineffective assistance of counsel must prove that his attor-
neyȂœȱ ™Ž›˜›–Š—ŒŽȱ ȃŽ••ȱ ‹Ž•˜ ȱ Š—ȱ ˜‹“ŽŒ’ŸŽȱ œŠ—Š›ȱ ˜ȱ ›ŽŠȬ
sonableness” under all the circumstances, Strickland, 466 U.S.
at 687–88, and that the deficient performance prejudiced his
defense, id. at 692. To prove prejudice, the defendant must es-
Š‹•’œ‘ȱȃŠȱ›ŽŠœ˜—Š‹•Žȱ™›˜‹Š‹’•’¢ȱ‘Šǰȱ‹žȱ˜›ȱŒ˜ž—œŽ•Ȃœȱž—™›˜Ȭ
fessional errors, the result of the proceeding would have been
different.” Id. at 694. As applied in the context of plea bargain-
ing, the Strickland prejudice inquiry requires the defendant to
prove a reasonable probability that (1) he would have ac-
ŒŽ™Žȱ‘Žȱ™•ŽŠȱ˜Ž›ȱŠ—ȱ™•ŽŠŽȱž’•¢ȱ‹žȱ˜›ȱŒ˜ž—œŽ•ȂœȱŽȬ
ficient performance; (2) his guilty plea “would have been
entered without the prosecution canceling it or the trial court
refusing to accept it”; and (3) the end result “would have been
more favorable by reason of a plea to a lesser charge or a sen-
tence of less prison time.” Frye, 566 U.S. at 147.
ConnorȂœȱŒ•Š’–ȱŠ’•œȱŠȱ‘Žȱ’›œȱœŽ™ȱ˜ȱ‘ŽȱFrye prejudice
framework under ‘Žȱ ‘Š‹ŽŠœȱ œŠžŽȂœȱ highly deferential
standard of review for factual findings in general and credi-
bility determinations in particular. Connor claimed in his tes-
timony at the postconviction hearing that he would have
accepted the 18-year plea offer and pleaded guilty had his
counsel advised him of the mandatory life sentence he faced
if convicted of assaulting both victims. But that testimony
No. 23-1595 13

squarely contradicted what he said at the sentencing hearing
when he professed his innocence and declared unequivocally
that he would not have pleaded guilty just to get a lesser sen-
tence even if he had known the outcome of trial. Based on that
glaring contradiction, and for additional reasons relating to
his demeanor and other conflicts between his testimony and
the record, the state trial judge found him to be “not a credible
witness.”
The Illinois Appellate Court affirmed, largely on the same
reasoning. That ruling is well supported by the record. It is
also presumptively correct under § 2254(e)(1), and Connor
bears the burden of rebutting the presumption by clear and
convincing evidence. His argument for overturning the state
Œ˜ž›Ȃœȱcredibility finding rests solely on the significant dis-
parity between the 18-year plea offer and the mandatory life
sentence he faced if convicted at trial (and is now serving). He
contends that the significance of this disparity is enough,
without more, to rebut the adverse credibility determination.
Ȃœȱ ›žŽȱ ‘Šȱ a sizable disparity between the sentence
called for in a putative plea bargain and the sentence the de-
fendant faced if convicted at trial is objective evidence that
can inform the Strickland prejudice question in this context—
i.e., whether the defendant would have pleaded guilty but for
‘’œȱŠ˜›—Ž¢Ȃœ errant advice. See, e.g., Julian v. Bartley, 495 F.3d
487, 498–99 (7th Cir. 2007); Moore v. Bryant, 348 F.3d 238, 242–
43 (7th Cir. 2003). žȱ’Ȃœȱ—˜ȱenough on its own. ŽȂŸŽȱŽ¡Ȭ
plained that a defendant must do more than “show that most
or many defendants in his position would accept the plea.”
Quintana v. Chandler, 723 F.3d 849, 857 (7th Cir. 2013). Rather,
˜ȱ™›˜ŸŽȱ‘Šȱ‘Žȱ Šœȱ™›Ž“ž’ŒŽȱ‹¢ȱŒ˜ž—œŽ•Ȃœȱ™Ž›˜›–Š—ŒŽȱŠȱ
the plea-bargaining stage, the defendant “must offer
14 No. 23-1595

something more than the large gap in sentence lengths to
show that he would have accepted the [plea deal].” Id.
Applying this principle here, the large gap in sentence
lengths is not enough to ’œ™•ŠŒŽȱ ‘Žȱ œŠŽȱ Œ˜ž›Ȃœȱ ŠŸŽ›œŽȱ
credibility finding. It shows, at best, that many defendants in
˜——˜›Ȃœȱ ™˜œ’’˜—ȱ ˜ž•ȱ ŠŒŒŽ™ȱ ‘Žȱ ™•ŽŠȱ ŽŠ•; it does not
clearly and convincingly show that he would have done so. In
more concrete terms, it does not show that he would have
pleaded guilty to sexually assaulting his daughter or step-
daughter—especially (though not exclusively) because he
said precisely the opposite at sentencing when he was well
aware that he was about to be sentenced to life in prison.
On this record, the sentence disparity is not alone enough
to overcome the presumption of correctness that applies to
state-court factual findings. More specifically, it does not
overcome the great deference owed to state-court credibility
determinations on federal habeas review. The state appellate
court Š’›–Žȱ‘Žȱ›’Š•ȱ“žŽȂœ rejection of ˜——˜›Ȃœȱ™˜œŒ˜—Ȭ
viction testimony as not worthy of belief, a finding that is am-
ply supported by the record. Connor had a heavy burden to
clearly and convincingly rebut this adverse credibility find-
ing. He has not carried it.
AFFIRMED
No. 23-1595 15

ROVNER, Circuit Judge, concurring. Michael J. Connor re-
jected a plea offer of eighteen years, thinking it was possible
that he might be sentenced to as little as twelve years. At the
time he was considering the plea offer, neither his counsel nor
the court informed him that, should he be convicted, the court
would have no choice but to sentence him to 120 years. This
is an astoundingly troubling fact scenario. Nevertheless, the
majority’s careful analysis correctly concludes that our hands
are tied. The state post-conviction relief court made factual
and credibility findings to which we must give great defer-
ence, and those determinations make federal habeas relief
from this state conviction impossible.
I write only to highlight two issues I believe to be worthy
of consideration in future cases. First, the defense bar may
wish to consider whether lawyers have a duty to advise their
clients about the potential consequences of making allocution
statements like the one Connor made here—that he would
have never accepted a plea deal under any circumstances. Af-
ter all, it is not an uncommon scenario for a defendant to al-
lege in post-conviction proceedings that he was misinformed
about his maximum potential sentence. A defendant can con-
tinue to profess vociferously his innocence without stating
that there are no circumstances under which he would have
accepted a plea. A person may think he would never plead
guilty to a crime he did not commit, but many of us would
feel differently when confronted with the risk of spending the
rest of our lives in prison. “Never say ‘never’” would have
been sage advice from counsel.
Second, allocution is an important right that allows a de-
fendant to present mitigating circumstances and represent
himself to a judge in the most favorable light. United States v.
16 No. 23-1595

Cunningham, 883 F.3d 690, 699 (7th Cir. 2018); see also Kim-
berly A. Thomas, Beyond Mitigation: Towards A Theory of
Allocution, 75 Fordham L. Rev. 2641, 2644 (2007). One might
expect defendants to do all they possibly can to paint them-
selves in the best light. Because the purpose of these unsworn
statements is to persuade, present mitigating circumstances,
and seek mercy, courts ought to think skeptically about the
use of these statements as substantive evidence in subsequent
proceedings. But see U.S. v. Ward, 732 F.3d 175, 183 (3d Cir.
2013) (noting that the unsworn nature of allocution does not
prevent its use in future proceedings); United States v. Whitten,
610 F.3d 168, 199 (2d Cir. 2010) (same). The use of Connor’s
allocution statement in this case is particularly troubling be-
cause it was not a confession to a particular crime or fact, but
a statement meant to convey how strongly he believed in his
innocence.
Moreover, contrary to the state post-conviction court’s
conclusion, I am not so certain that, at the time he delivered
his allocution statement, Connor understood that the court
had absolutely no choice but to impose a mandatory life sen-
tence. Just before Connor made his statement, his counsel ad-
dressed the court and offered a theory for imposing a mere
twelve-year sentence. If, in fact, his counsel thought that a
twelve-year term of imprisonment might still be on the table,
it seems likely that Connor could have as well. In order to
demonstrate the sincerity of his claim of innocence, Connor
may have been willing to risk twelve years, but as we have
now noted many times, the calculus must surely change when
a court has only one choice of sentence—life imprisonment.
At the moment in time when Connor had to make his de-
cision to accept or reject the eighteen-year plea offer, he was
No. 23-1595 17

devastatingly ill-informed of the potential ramifications of re-
jecting the offer. I question the fairness of locking Connor into
his statement at allocution that he would not have changed
his plea had he known that he would be found guilty, given
the disparity between the 18-year plea offer and the eleventh-
hour discovery that he was subject to a mandatory life sen-
tence. Nevertheless, the state post-conviction relief court did
not believe Connor’s later contention that he would indeed
have accepted the 18-year offer. As the majority correctly and
fairly concludes, we have no ability to undo the state court’s
credibility and factual determinations. This court is left with
no choice but to deny the requested relief.