Riggs v. Fairman

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

MICHAEL WAYNE RIGGS,  No. 02-55185
Petitioner-Appellant, D.C. No.
v.  CV-00-04266-
J. W. FAIRMAN, JR., Warden, CBM(E)
Respondent-Appellee.
 OPINION

Appeal from the United States District Court
for the Central District of California
Consuelo B. Marshall, Chief Judge, Presiding

Argued January 5, 2004
Submitted March 16, 2004
Pasadena, California

Filed March 7, 2005

Before: Stephen S. Trott, Johnnie B. Rawlinson, and
Carlos T. Bea, Circuit Judges.

Opinion by Judge Rawlinson;
Dissent by Judge Bea

2791
2794 RIGGS v. FAIRMAN

COUNSEL

Donald M. Falk, Mayer Brown Rowe & Maw, Palo Alto, Cal-
ifornia, for the appellant.

Kyle Niki Shaffer, Deputy Attorney General, San Diego, Cal-
ifornia, for the appellees.

OPINION

RAWLINSON, Circuit Judge:

Following a jury trial, California state prisoner Michael
Wayne Riggs (Riggs) filed a habeas petition seeking to set
aside his conviction on the basis that he was denied effective
assistance of counsel during the plea bargaining stage of his
criminal prosecution. The district court ruled that Riggs’
attorney’s failure to inform him that California’s “three
strikes” law might apply to his case constituted ineffective
assistance of counsel. The district court vacated Riggs’ con-
viction and sentence and ordered the parties to return to the
pre-error negotiating stage. The court declined Riggs’ request
that the court order the government to resurrect its original
plea offer. Because the remedy fashioned by the district court
was within its discretionary bounds, we AFFIRM.

I.

BACKGROUND

Riggs was charged with petty theft in the Superior Court of
 RIGGS v. FAIRMAN 2795
California. He had been convicted previously of four counts
of robbery. Although Riggs’ four robbery convictions arose
from a single proceeding, each conviction constituted a sepa-
rate “strike” under California’s three strikes law.1 See People
v. Campos, 45 Cal.Rptr.2d 706, 709 (Cal.App. 1995). Califor-
nia’s three strikes law imposes a 25-year-to-life sentence on
defendants previously convicted of two or more “serious” or
“violent” felonies. Cal. Penal Code §§ 667(e)(2)(A),
1170.12(c)(2)(A).

Before his preliminary hearing, Riggs, the deputy district
attorney, and Riggs’ defense counsel engaged in plea negotia-
tions. None of the parties to the negotiations understood that
Riggs faced a potential life prison term under California’s
three strikes law. The prosecutor was unaware that she could
charge four “strikes” for four robbery charges tried in a single
proceeding. Riggs’ counsel had limited knowledge of Riggs’
criminal history due to her failure to independently investigate
Riggs’ prior criminal record. Based on her limited knowledge,
Riggs’ counsel advised Riggs that his maximum exposure on
the petty theft charge was only nine years. Riggs knew his
own criminal history, but did not understand that California
law permitted charging multiple counts arising in a single
prior case as separate strikes.

During the course of plea negotiations, the state offered
Riggs a deal that would permit him to plead guilty in return
for a six-year sentence. This offer was later revised to include
a five-year sentence. Riggs’ counsel advised him that he could
do better than the five-year offer and Riggs rejected the offer.
However, no better deal was offered. Riggs was eventually
convicted of felony petty theft and sentenced to 25-years-to-
life in prison.
1
Riggs’ prior robbery convictions converted his otherwise misdemeanor
petty theft offense into the felony of petty theft with a prior. See Cal. Penal
Code § 666.
2796 RIGGS v. FAIRMAN
II.

STANDARDS OF REVIEW

We review de novo the district court’s ruling on a writ of
habeas corpus. Van Lynn v. Farmon, 347 F.3d 735, 738 (9th
Cir. 2003). We review the district court’s ruling on the appro-
priate remedy for abuse of discretion. Nunes v. Mueller, 350
F.3d 1045, 1056-57 (9th Cir. 2003).

III.

DISCUSSION

A. General Legal Standard

Because Riggs filed his habeas petition after the enactment
of the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), his appeal is governed by the rules of that Act. See
Gill v. Ayers, 342 F.3d 911, 917 (9th Cir. 2003). Under
AEDPA, we may grant the petition only if the state court’s
denial of relief:

(1) resulted in a decision that was either “contrary
to,” or was an “unreasonable application” of “clearly
established federal law” as set forth by the United
States Supreme Court; or

(2) if that decision 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(d)(1); Tracey v. Palmateer, 341 F.3d 1037,
1042 (9th Cir. 2003).

[1] To succeed on his ineffective assistance of counsel
claim, Riggs must show both that his counsel’s performance
was constitutionally deficient and that he was prejudiced by
 RIGGS v. FAIRMAN 2797
his counsel’s errors. Strickland v. Washington, 466 U.S. 668,
687 (1984).2 To warrant relief under Strickland, defense coun-
sel’s performance must have fallen below an “objective stan-
dard of reasonableness.” Id. at 688. Riggs must show a
“reasonable probability” that, but for his counsel’s ineffec-
tiveness, the result of his proceedings would have differed. Id.
at 694. “A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id. The Supreme
Court’s two-part standard for analyzing claims of ineffective
assistance of counsel was clearly established law as of the
time of the plea negotiations.3

In a habeas appeal, we review the last reasoned decision in
the state court system. Robinson v. Ignacio, 360 F.3d 1044,
1055 (9th Cir. 2004). In this case, Riggs filed a direct appeal
of his conviction. The California Court of Appeal affirmed the
judgment of conviction. However, the direct appeal did not
include the ineffective assistance of counsel claim now before
us. Riggs subsequently filed a habeas petition in the Califor-
nia Supreme Court asserting, among other causes, an ineffec-
tive assistance of counsel claim.

The California Supreme Court summarily denied Riggs’
habeas petition. Ordinarily, we look through the California
Supreme Court’s summary denial of the ineffective assistance
claim to the last reasoned state court decision that did address
the claim. See Bailey v. Rae, 339 F.3d 1107, 1112 (9th Cir.
2003). However, the only other state court decision address-
ing Riggs’ conviction was the Court of Appeal decision
rejecting Riggs’ direct appeal. As noted above, the direct
2
“It is past question that the rule set forth in Strickland qualifies as
clearly established Federal law, as determined by the Supreme Court of
the United States.” Williams v. Taylor, 529 U.S. 362, 391 (2000) (internal
quotation marks omitted).
3
It is also clear that the Strickland analysis applies to claims of ineffec-
tive assistance of counsel involving counsel’s advice offered during the
plea bargain process. See Hill v. Lockhart, 474 U.S. 52, 58 (1985).
2798 RIGGS v. FAIRMAN
appeal did not raise the ineffective assistance of counsel
claim. As a result, there is no state court determination
addressing Riggs’ ineffective assistance of counsel claim. In
such a circumstance, we undertake an “independent review of
the record.” See Greene v. Lambert, 288 F.3d 1081, 1089 (9th
Cir. 2002).

B. Deficient performance

[2] The performance prong of the ineffective assistance of
counsel analysis turns on whether Riggs’ attorney’s failure to
learn that Riggs was exposed to a potential 25-year-to-life
sentence fell below an objective standard of reasonableness.
Defense “counsel has a duty to make reasonable investiga-
tions or to make a reasonable decision that makes particular
investigations unnecessary.” Id. at 691. The investigatory
omissions made by Riggs’ attorney were numerous. Among
the most egregious omissions were counsel’s failure to inves-
tigate Riggs’ prior robbery convictions, failure to obtain
Riggs’ rap sheet, and failure to seek sufficient information
from Riggs about his prior robbery convictions.

[3] Informed only by her limited knowledge of his criminal
record, Riggs’ counsel advised him that his maximum expo-
sure under California law was only nine years and that he
should therefore reject the state’s offer of a five-year prison
term. However, Riggs’ actual exposure under California’s
three strikes law was 25-years-to-life. Defense counsel’s
advice to Riggs was not only erroneous, but egregious, con-
sidering the discrepancy between the two punishments. See
Iaea v. Sunn, 800 F.2d 861, 865 (9th Cir. 1986) (“Though a
mere inaccurate prediction, standing alone, would not consti-
tute ineffective assistance, the gross mischaracterization of the
likely outcome presented in this case, combined with the erro-
neous advice on the possible effects of going to trial, falls
below the level of competence required of defense attor-
neys.”) (citations omitted).
 RIGGS v. FAIRMAN 2799
[4] Simply stated, Riggs’ counsel had a duty to investigate
whether California’s three strikes law would be applicable to
Riggs. Riggs’ counsel unjustifiably failed to discover such
information in this case. Her omission fell below an objective
standard of reasonableness. See Iaea, 800 F.2d at 865.

C. Prejudice

Riggs must also “affirmatively prove prejudice,” Strick-
land, 466 U.S. at 693, by demonstrating “that there is a rea-
sonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been differ-
ent.” Id. at 694. This burden represents a fairly low threshold.
See Sanders v. Ratelle, 21 F.3d 1446, 1461 (9th Cir. 1994)
(stating that a “reasonable probability” is actually a lower
standard than preponderance of the evidence). Riggs has suf-
ficiently demonstrated that counsel’s ineffectiveness preju-
diced him. Riggs credibly testified that he would have
accepted the five-year plea sentence offered by the prosecu-
tion if he had known that his maximum exposure was a sen-
tence of 25-years-to-life. The significant discrepancy between
a sentence of five years and a sentence of 25-years-to-life sup-
ports Riggs’ testimony. Such a discrepancy between the two
sentences would compel any reasonable person to take the
deal offered by the prosecution. In addition, the record indi-
cates that the state’s case against Riggs was strong. Therefore,
it does not stretch credulity to conclude that Riggs would have
preferred a certain five-year prison term to a trial with the
possibility of a sentence of 25-years-to-life if convicted.

[5] The record also indicates that once Riggs became aware
of the application of the three strikes law to his case, he
attempted to get the sentencing offer reinstated. Despite
Riggs’ efforts, the prosecution declined to reinstate the offer.
Riggs’ testimony and actions, along with the large disparity
between the respective sentences persuades us that there is a
“reasonable probability” that the outcome of the criminal pro-
ceeding against Riggs would have differed had he received
2800 RIGGS v. FAIRMAN
competent legal advice. See Mask v. McGinnis, 233 F.3d 132,
142 (2d Cir. 2000) (holding that the prejudice requirement
was satisfied when defendant stated his willingness to accept
a reasonable plea bargain and a great disparity existed
between the sentence exposure at trial and in the plea bar-
gain). We agree with the district court that Riggs has shown
prejudice.

D. Remedy For Ineffective Assistance of Counsel

Upon concluding that Riggs was denied effective assistance
of counsel, the district court vacated Riggs’ jury conviction
and three-strikes sentence for petty theft with a prior. The dis-
trict court ordered the parties to return to the pre-error stage
of the criminal proceeding. The district court determined that
the appropriate pre-error stage of the criminal proceeding was
the plea bargain stage. Despite Riggs’ urging, the district
court declined to order the government to reinstate the five-
year plea offer. Riggs argues on appeal that specific perfor-
mance of the state’s five-year plea offer is the only appropri-
ate remedy in this case.

[6] Once a determination has been made that habeas relief
is warranted, the district court has considerable discretion in
fashioning a remedy “tailored to the injury suffered from the
constitutional violation . . .” United States v. Morrison, 449
U.S. 361, 364 (1981). The Supreme Court has instructed that
“[f]ederal habeas corpus practice, as reflected by the decisions
of this Court, indicates that a court has broad discretion in
conditioning a judgment granting habeas relief. Federal courts
are authorized, under 28 U.S.C. § 2243, to dispose of habeas
corpus matters ‘as law and justice require.’ ” Hilton v. Braun-
skill, 481 U.S. 770, 775 (1987) (internal quotation marks
omitted). Therefore, unless the district court abused its discre-
tion in fashioning a remedy, that remedy must stand. Nunes,
350 F.3d 1056-57.
 RIGGS v. FAIRMAN 2801
[7] When ineffective assistance of counsel has deprived a
defendant of a plea bargain, a court may choose to vacate the
conviction and return the parties to the plea bargaining stage.
See United States v. Gordon, 156 F.3d 376, 381-82 (2d Cir.
1998). A court may also order the government to reinstate its
original plea offer to the defendant or release the defendant
within a reasonable amount of time. See Nunes, 350 F.3d at
1056-57 (9th Cir. 2003).4 In deciding the proper remedy, a
court must consider the unique facts and circumstances of the
particular case. See Morrison, 449 U.S. at 364.

[8] As the district court noted, neither of the options
described above offers a perfect solution. Riggs v. Fairman,
178 F.Supp.2d 1141, 1152-53 (C.D. Cal. 2001). If the prose-
cution were ordered to reinstate its original plea offer to
Riggs, the government would be forced to repeat the same
mistake it made years ago. On the other hand, returning the
parties to the negotiation stage does not restore the lost plea
opportunity. Weighing both of these considerations, the dis-
trict court held that “[t]he least inappropriate remedy, there-
fore, would appear to be the vacation of the conviction and
the return of the parties to the pre-error stage.” Id. at 1154.
The district court aptly noted that as a matter of policy, requir-
ing the government to re-offer Riggs the five-year deal is
troubling in light of the fact that under California law, plea
bargains are not binding on the parties until “a defendant
pleads guilty or otherwise detrimentally relies on that bar-
gain.” People v. Rhoden, 75 Cal.App.4th 1346, 1354 (1999).
Therefore, even if Riggs had accepted the five-year plea offer,
the government may have realized its mistake prior to the
court’s acceptance of the plea agreement. Upon realizing its
4
We note that in Nunes, we were called upon to decide whether the dis-
trict court abused its discretion when it ordered specific performance of
the original plea offer. The fact that we affirmed the remedy fashioned by
the district court in that case reinforces the discretion that lies with the dis-
trict court, and does not suggest that a particular remedy is mandated in
any given case.
2802 RIGGS v. FAIRMAN
mistake, the government would have had the right to unilater-
ally invalidate the plea agreement. Because the district court
properly considered the effect of California law and weighed
the competing considerations raised by the parties, we cannot
say that the district court abused its discretion in returning the
parties to the plea bargain stage of the proceedings.

IV.

CONCLUSION

[9] We find no abuse of discretion by the district court in
fashioning the remedy in this case. It is undisputed that the
plea offer to Riggs was a result of a misunderstanding of Cali-
fornia’s three strikes law by all involved. Absent the funda-
mental misunderstanding that pervaded the plea negotiations,
Riggs never would have been offered a five-year plea sen-
tence. Riggs missed the opportunity to exploit the govern-
ment’s misstep and seize a plea offer that never should have
been extended to him. Under such circumstances, we cannot
conclude that the remedy of specific performance of the gov-
ernment’s plea offer was the only appropriate remedy.

AFFIRMED.

BEA, Circuit Judge, dissenting:

I respectfully dissent from part III.D. of the majority’s
opinion because it is well-established law that in fashioning
a remedy for ineffective assistance of counsel, this court must
put Riggs back in the position he would have been in had he
received effective assistance of counsel. Kimmelman v. Mor-
rison, 477 U.S. 365, 379 (1986); Nunes v. Mueller, 350 F.3d
1045 (9th Cir. 2003); United States v. Blaylock, 20 F.3d 1458,
1468 (9th Cir. 1994).1 The majority’s remedy fails to do so.
1
The sole issue raised on appeal is the remedy fashioned by the district
court. The state did not cross-appeal the district court’s ruling that Riggs
 RIGGS v. FAIRMAN 2803
What Riggs has won is a “famous victory”:2 He has won
his writ of habeas corpus; everyone agrees he received inef-
fective assistance of counsel and that had he received compe-
tent counsel he would have accepted the prosecution’s five-
year offer; and, having already served seven years in prison,
today he would be a free man. But regardless Riggs’ success
in winning his writ, the majority’s remedy will put him right
back in the same place he was before he won his writ: serving
a mandatory sentence of 25 years to life.

With respect, this result is based on erroneous factual
assumptions and on misguided legal reasoning.

First, without any evidentiary support, the majority opinion
assumes that had the prosecutor correctly read the law, she
would not have persisted in the five-year offer. This assump-
tion is belied by the district court’s finding that Riggs was
actually prejudiced by the ineffective assistance of counsel;
that had he received competent counsel the outcome would
have been different. Such a finding necessarily implies the
district attorney would not have withdrawn her five-year
offer. If the district court had found the prosecutor would
have withdrawn the five-year offer, Riggs could not be found
to have been prejudiced by his ineffective attorney.

had ineffective assistance of counsel at the plea bargaining stage. There-
fore, I shall not comment on the majority’s opinion which precedes part
III.D. While it is informative and accurate, such earlier portion of the
opinion is background, rather than determinative.
2
“And everybody praised the Duke
Who this great fight did win.”
“But what good came of it at last?”
Quoth little Peterkin.
“Why, that I cannot tell,” said he,
“But ‘twas a famous victory.”
Robert Southey, The Battle of Blenheim, in HISTORICAL POEMS AND
BALLADS, (Rupert S. Holland, ed., George W. Jacobs & Co) (1912).
2804 RIGGS v. FAIRMAN
Second, the two reasons given by the majority opinion for
departing from the traditional remedy of reinstating the plea
offer are mistaken interpretations of criminal and constitu-
tional law. Our precedent is clear that a prosecutor cannot
withdraw a plea bargain offer on remand where the accused
had ineffective assistance of counsel at the time the offer was
tendered and refused. Neither is the prosecutor entitled to
have any errors of its own erased by a Sixth Amendment
which grants rights only to the accused.

I

To say the case against Riggs was strong is an understate-
ment. On October 13, 1995, Riggs shoplifted a bottle of vita-
mins in what the district court described as “a petty theft
motivated by homelessness and hunger.” Riggs v. Fairman,
178 F. Supp. 2d 1141, 1143 (C.D. Cal. 2001). When caught,
Riggs “apologized emphatically” and told the store employees
that if they would give him a job “he’d scrub floors or clean
the place” to pay for the vitamins. Id. at 1143-45.

Riggs was charged with petty theft. Had this been Riggs’
first offense, it would have been a misdemeanor with a maxi-
mum sentence of six months, or a fine. CAL. PENAL CODE
§ 490. However, Riggs had previously been convicted of four
counts of robbery in 1988. At first, one might think the previ-
ous conviction would turn this misdemeanor offense into a
felony. See CAL. PENAL CODE § 666. As a “second strike”, the
prosecution said it could increase Riggs’ possible penalty to
nine years. But under California’s three strikes law, even
though Riggs’ conviction for four counts of robbery were
charged in a single complaint, each count constituted a sepa-
rate “strike.” See CAL. PENAL CODE §§ 667; People v. Fuhr-
man, 941 P.2d 1189, 1195-96 (1997). Thus, Riggs’ previous
conviction turned this petty theft into his “third strike” with
a mandatory sentence of 25 years to life.

As the district court found, the “evidence of Petitioner’s
guilt was overwhelming.” His theft had been seen by multiple
 RIGGS v. FAIRMAN 2805
witnesses, to whom he had confessed to the crime. Riggs, 178
F. Supp. 2d at 1143, 1149. At trial, defense counsel did not
even present a closing argument. If remanded for a new trial,
there is absolutely no reason to think Riggs will not be con-
victed again and receive another mandatory sentence of 25
years to life, especially since the parties have been unable to
agree to a disposition during mediation.

II

A. The Remedy Required by Law Is to Allow Riggs to
Remain Free Because He Has Served More Time Than
He Would Have Under the Plea Offer

The issue we decide today is whether the district court’s
remedy places Riggs in the position in which he would have
been, had he received effective assistance of counsel during
plea negotiations. The clear answer is “No.”

A defendant’s right to effective assistance of counsel is
guaranteed by the Sixth and Fourteenth Amendments to the
United States Constitution. Kimmelman v. Morrison, 477 U.S.
365, 379 (1986); Gideon v. Wainwright, 372 U.S. 335, 344
(1963).

We have articulated the remedy for ineffective assistance of
counsel during the plea bargaining stage as follows:

Since the remedy for counsel’s ineffective assistance
should put the defendant back in the position he
would have been in if the Sixth Amendment viola-
tion had not occurred, in certain circumstances grant-
ing a new trial may not be the appropriate remedy.
. . . Thus, where, as here, the defendant was deprived
of the opportunity to accept a plea offer, putting him
in the position he was in prior to the Sixth Amend-
ment violation normally will involve reinstating the
original offer.
2806 RIGGS v. FAIRMAN
United States v. Blaylock, 20 F.3d 1458, 1468 (9th Cir. 1994)
(emphasis added).

Blaylock was convicted of being a felon in possession of a
firearm. He filed a motion pursuant to 28 U.S.C. § 2255 to
vacate, set aside, or correct his sentence; his motion was
denied. He appealed both his conviction and the denial of his
Section 2255 motion, and the appeals were consolidated. He
argued, in relevant part, that he had ineffective assistance of
counsel at the plea bargaining stage.

Blaylock claimed his attorney did not tell him about a plea
offer until after it expired and that had he known about the
offer in time, he would have accepted it. Id. at 1467. We held
it was an abuse of discretion to deny Blaylock an evidentiary
hearing on his claim of ineffective assistance of counsel; that
if Blaylock proved on remand he would have accepted the
plea offer, the correct remedy would be to reinstate the plea
offer, not to give him a new trial. Id. at 1465, 1468-69.

There is only one recognized exception to Blaylock’s gen-
eral rule that a plea offer should be reinstated where there is
ineffective assistance of counsel at the plea bargaining stage:
“The government may of course, in proper cases, seek to
demonstrate that intervening circumstances have so changed
the factual premises of its original offer that, with just cause,
it would have modified or withdrawn its offer prior to its
expiration date.” Blaylock, 20 F.3d at 1468-69 (emphasis
added). The burden to prove such changed factual premises
rests on the prosecution. Id. Blaylock does not say a change
in the state’s understanding of the law permits the state to
withdraw its plea offer retroactively.

There were no changes in the facts in our case. The prose-
cution presented absolutely no evidence of changed factual
circumstances after the plea offer—such as a defendant refus-
ing to cooperate after agreeing to testify against a co-
defendant, the defendant attacking a prison guard, or the dis-
 RIGGS v. FAIRMAN 2807
covery of new evidence in the case. Even assuming changes
in the facts, the state has not presented any evidence it would
have withdrawn the offer prior to the original expiration date
had it known Riggs could have been charged under the three
strikes law.

As noted, the district court found Riggs would have taken
the five-year plea offer if he had received effective assistance
of counsel, Riggs, 178 F. Supp. 2d at 1149, and that finding
has not been appealed. Thus, as the district court itself
acknowledged, its remedy of remanding for a new trial “does
not restore the lost plea opportunity of which petitioner was
deprived.” Id. at 1152. Rather, the district court’s remedy
returns the parties to the point in time before the offer had
been made, not the status quo when the ineffective assistance
of counsel to Riggs occurred—when the offer was open.3 As
the district court stated, “The Court also believes the forced
restoration of the plea offer would be inappropriate. The one-
strike charging decision, and the plea offer, resulted from a
prosecutor’s temporary misunderstanding of California law.”4
Riggs, 178 F. Supp. 2d at 1153. In short, by returning the case
to a point before the prosecutor had committed a “mistake”,
the district court incorrectly sought to protect the state from
its own ineffective counsel, rather than focus solely on the
text and purpose of the Sixth Amendment—protecting the
right to effective counsel of the person accused of a crime.
3
Although the district court’s decision states that it is returning the par-
ties to the pre-error stage of the proceedings and the parties will be free
to negotiate a plea bargain or not, the parties have been unable to negotiate
a settlement in the district court or this court, and are unlikely to do so
upon remand. The prosecution knows it can obtain a conviction, the prose-
cution’s office has a policy of not negotiating Third Strike cases after the
preliminary hearing, and Riggs has nothing with which to bargain. There-
fore, in reality, the parties will find themselves back in the position they
were in after the offer had expired and the Information had been amended,
rather than at the time the offer was made.
4
See pages 2806-2808, infra, for a discussion of why there is no evi-
dence the prosecutor was operating under a “misunderstanding”, but there
is much evidence of no misunderstanding at all.
2808 RIGGS v. FAIRMAN
Our case is also similar to Nunes v. Mueller, 350 F.3d 1045
(9th Cir. 2003). In Nunes, the prosecutor offered a plea bar-
gain of 11 years, with credit for time actually served, if Nunes
would plead guilty to voluntary manslaughter. Id. Defense
counsel incorrectly told Nunes the offer was for 22 years, not
11. Id. Nunes testified he asked his attorney to clarify the
offer, but defense counsel simply rejected the offer. Id. Nunes
was convicted of second degree murder and sentenced to 25
years to life, with a two-year enhancement.

The California Court of Appeal rejected Nunes’ claim that
he had ineffective assistance of counsel in the plea bargaining
stage, holding he had not made out a prima facie claim he
would have accepted the plea bargain but for counsel’s defi-
cient performance. Id. at 1050.

Nunes then filed a petition for a writ of habeas corpus
under 28 U.S.C. § 2254 in federal court. The district court
held an evidentiary hearing and concluded Nunes did have
ineffective assistance of counsel during the plea bargaining
stage and he would have pleaded guilty to accept the 11-year
offer. The court vacated Nunes’ conviction and ordered the
state to reinstate its 11-year plea offer. Id.

On appeal, we affirmed the district court’s grant of the
habeas writ, and remanded with instructions for the district
court to “modify the writ to order Nunes’ release (that is, after
all, the classic relief afforded by the writ) within a reasonable
time unless the state provides the identical offer it made to
Nunes earlier.” Id. at 1056.

The remedy we ordered on remand would obviously have
been meaningless if the state could revoke its offer after
remand. Necessarily implied in our remand order was the con-
dition that had the state chosen to offer Nunes the identical
offer, it would have had to leave that offer open long enough
for Nunes to accept it by pleading guilty. Otherwise, the rem-
edy would not have put Nunes “back in the position he would
 RIGGS v. FAIRMAN 2809
have been in if the Sixth Amendment violation had never
occurred,” which we stressed we must do. Id. at 1057.

Puzzlingly, the state relies on In re Alvernaz, 830 P.2d 747
(1992), for the proposition that it should not be forced to rein-
state its plea offer. But in Alvernaz, the district court dis-
agreed with such a ruling by the state court, granted a habeas
writ, and specifically held that a new trial would be an empty
remedy and would deprive the defendant of the opportunity to
accept the plea which he would have taken absent the
improper advice of counsel. See Alvernaz v. Ratelle, 831 F.
Supp. 790, 791, 797-98 (S.D. Cal. 1993). Therefore, Alvernaz
was entitled to be released unless the plea offer was rein-
stated. Id.

Blaylock was a federal case brought under 28 U.S.C.
§ 2255, whereas Riggs is a state prisoner, bringing an action
under 28 U.S.C. § 2254. Nevertheless, Blaylock was simply
applying clear federal constitutional law as articulated by the
Supreme Court. We are called to do the same here.

Although Kimmelman did not involve a plea bargain, it did
involve ineffective assistance of counsel at the pre-trial stage.
Counsel had failed to file a motion to suppress within the time
allowed under state law. As a result, evidence the defendant
objected to on grounds of illegal search and seizure was intro-
duced at trial. The Supreme Court held that, although under
New Jersey law the lack of a timely motion to suppress
allowed the evidence to be admitted, Kimmelman’s constitu-
tional right to effective assistance of counsel was violated by
his counsel’s failure to move to suppress; the right to effective
counsel prevailed over any New Jersey law that interfered
with that right. Kimmelman, 477 U.S. at 379. After all, the
application of federal constitutional law (which is exactly
what 28 U.S.C. § 2254 is all about) cannot be subordinated to
state law concepts. This principle applies even if, as here,
those concepts happen to be precisely the same; a criminal
defendant is entitled to effective assistance of counsel under
2810 RIGGS v. FAIRMAN
California law as well. People v. Bautista, 115 Cal. App. 4th
229, 237-42 (2004).

The Court in Kimmelman went on to explain that where the
right to effective assistance of counsel conflicts with a princi-
ple of state law, “the Constitution constrains our ability to
allocate as we see fit the costs of ineffective assistance. The
Sixth Amendment mandates that the State bear the risk of
constitutionally deficient assistance of counsel”, not the crimi-
nal defendant. Kimmelman, 477 U.S. at 379. The only remedy
which could cure the constitutional error was to return the
accused to the point in the criminal proceeding when the inef-
fective assistance of counsel caused the prejudicial error in
violation of constitutional rights.

Blaylock and Nunes were simply applying these principles
of federal constitutional law enunciated in Kimmelman to
develop the correct remedy for ineffective assistance of coun-
sel at the plea bargaining stage.5 As the Supreme Court has
explained, “rules of law may be sufficiently clear for habeas
purposes even when they are expressed in terms of a general-
ized standard rather than as a bright-line rule.” Williams v.
Taylor, 529 U.S. 362, 382 (2000); see also Robinson v. Igna-
cio, 360 F.3d 1044, 1057 (9th Cir. 2004) (holding that “Ninth
Circuit precedent may be persuasive authority for purposes of
determining whether a particular state court decision is an
unreasonable application of Supreme Court law, and may also
help us determine what law is clearly established.”) (citation
and quotation marks omitted). The “generalized standards” in
Kimmelman were (1) where a state law conflicts with the con-
stitutional right to effective assistance of counsel, the defen-
dant’s rights prevail and (2) where ineffective assistance of
counsel is so grave as to effect a deprivation of counsel, in
violation of the Sixth Amendment, the state should bear the
5
If more were thought needed, Nunes was a California state case,
brought under 28 U.S.C. § 2254 after the enactment of AEDPA.
 RIGGS v. FAIRMAN 2811
burden of the ineffectiveness of counsel rather than the defen-
dant.

Further, this is not the typical section 2254 case. We are not
here called upon to review a state court’s decision. The only
decision being appealed is the federal district court’s remedy.
The district court’s decision that Riggs is entitled to a grant
of habeas corpus for ineffective assistance of counsel, which
did differ from the state court’s denial of his petition for writ
of habeas corpus, has not been cross-appealed by the state.
Thus, the traditional limitations of review of a state court
decision under 28 U.S.C. § 2254(d) do not apply to this case
because we are not reviewing a state court decision at all,
much less the “last reasoned decision”6 of the state courts.7

In light of this precedent, the majority’s citation to United
States v. Gordon, 156 F.3d 376 (2d Cir. 1998), is unpersua-
sive. It is a decision from the Second Circuit and, therefore,
is not binding on us. Additionally, the Second Circuit makes
a crucial distinction between cases where a relatively short
time has lapsed, since the defendant’s trial, and cases where
a great deal of time has lapsed and the defendant has already
served more time than he would have served under the plea
offer. We have not as yet recognized this as a factor in fash-
ioning the correct remedy, but it is one worth thinking about.
In cases where, as here, the defendant has served more time
than he would have under the original plea bargain, the Sec-
ond Circuit itself has found that the correct remedy is to
release the prisoner. Boria v. Keane, 99 F.3d 492, clarified on
reh’g, 90 F.3d 36 (2d Cir. 1996).

Riggs has been out of prison on bail since the district
court’s decision in 2001—after serving seven years in prison.
6
See Ylst v. Nunnemaker, 501 U.S. 797 (1991).
7
The state court ruling on Riggs’ petition for writ of habeas corpus rais-
ing ineffective assistance of counsel consisted of one sentence: “Petition
for writ of habeas corpus is DENIED.”
2812 RIGGS v. FAIRMAN
Having already served two years longer than the original five-
year plea bargain, Riggs should be allowed to remain a free
man. We have granted a writ of habeas corpus and ordered a
defendant’s immediate release in a similar case where the
defendant had already served more time than she would have
under the terms of her plea agreement. See Brown v. Poole,
337 F.3d 1155, 1160, 1162 (9th Cir. 2003).8

B. There Is No Evidence the Prosecution Would Have
Withdrawn Its Offer Before Riggs Could Plead Guilty

We review the district court’s decision to grant a 28 U.S.C.
§ 2254 habeas petition de novo as we do issues of law, includ-
ing the proper application of the law to the facts. Nunes, 350
F.3d at 1051. We review the district court’s finding that the
prosecutor might have withdrawn her five-year plea offer
before Riggs could plead guilty for clear error.9 Id. Where
there is a total lack of evidence to support a factual finding,
and substantial evidence to contradict it, such a finding consti-
tutes clear error. Id.

To support the district court’s finding the prosecutor might
have withdrawn her five-year plea offer had she realized she
could charge the prior felonies as four “strikes”, the majority
opinion requires us to assume: (1) the prosecutor made a mis-
take in her plea offer; and (2) absent that mistake, the prose-
cutor would have revoked or withdrawn her offer. Neither of
8
In Brown, a state prisoner pleaded guilty to second degree murder. The
state courts and the federal district court all denied her habeas petitions
seeking to enforce an oral plea agreement. We reversed and granted the
writ ordering her immediate release, holding that a prisoner whose oral
plea agreement called for her to be released in seven-and-a-half years if
she did not incur any disciplinary infractions was entitled to specific
enforcement, even though she would ordinarily not be eligible for parole
for ten years under the law.
9
The district court found there was a “possibility of such a post-
acceptance withdrawal” of the five-year plea offer. Riggs, 178 F. Supp. 2d
at 1153.
 RIGGS v. FAIRMAN 2813
these conclusions have support in the record. In fact, the evi-
dence supports the opposite inference: the prosecutor knew, at
all relevant times, of Riggs’ vulnerability to the three strikes
sentencing and, regardless, left the plea offer open until the
preliminary hearing. Let us consider the evidence.

As to whether the offer was a mistake, the record contains
several pieces of evidence that point to the conclusion the
five-year offer was not the product of a mistake.

For example, although the defense attorney was not aware
of the details of Riggs’ past criminal history, the prosecutor
was. Riggs, 178 F. Supp. 2d at 1144. The prosecutor charged
Riggs’ 1988 conviction in the original Complaint, filed on
October 16, 1995, 12 days after the publication of People v.
Campos, which made it clear the prosecutor could charge
each count on which a conviction had been obtained as a sep-
arate “strike.”10

Further, uncontradicted evidence was presented that this
prosecutor’s office routinely made five- or six-year plea offers
in about fifty percent of the three strikes cases involving petty
theft-with-a-prior; that the offers made before the preliminary
hearing were typically the best offers made to defendants; and
that the prosecutor would have honored even a mistaken offer
under these circumstances. 178 F. Supp. 2d at 1153 n.15. By
contrast, when a defendant rejected an offer, the policy of the
prosecutor’s office was “3rd Strikes cases that have reached
Superior Court [i.e., after a preliminary hearing results in an
10
47 Cal. App. 4th 1366, 1372, 45 Cal. Rptr. 2d 706 (1995). The Cam-
pos decision was binding law in California at the time it came down. 178
F. Supp. 2d at 1143 n. 4. Although the California Supreme Court later
granted review in Campos, see 908 P.2d 422 (1995), that court later
adopted the rule set forth in Campos in People v. Fuhrman, 941 P.2d 1189
(1997). Let us remember: there was one conviction on four counts. The
prosecutor’s mistake was not as to the fact of conviction or the fact of four
counts. The mistake, if there was one, was only as to whether each count
could count as a strike under the three strikes law. CAL. PENAL CODE § 667.
2814 RIGGS v. FAIRMAN
order that defendant be bound over for trial in the Superior
Court] will NOT be negotiated.”

This appears to be exactly what happened in Riggs’ case.
The prosecutor made him an offer and, once it was rejected,
the prosecutor refused to negotiate further. The most telling
evidence is the prosecutor’s own notes, which indicate that
she made him a five-year offer knowing about his prior con-
viction. It was only after Riggs rejected the offer that the pros-
ecutor amended the Information to charge him with a
violation of the three strikes law:

I offered Mr. Riggs mid term times two years for
four years in state prison, plus one year for a prison
prior for five years as my final offer. (My original
offer had been upper term [ ] times two for six
years.) . . . I recommend filing the information as is
[charging Riggs with three strikes], and basically
giving this guy every conceivable moment of the
time that he so richly deserves on his next trip to
state prison.

Nothing had happened between the time the prosecutor made
the offer and the time these notes were made, other than
Riggs’ rejection of the offer. Riggs did not commit any new
offenses. It is undisputed that the prosecution knew Riggs’
past criminal history at all times. Therefore, particularly in
light of the office’s policies and the prosecutor’s notes, the
most likely explanation for the withdrawal of the offer here is
not the prosecutor’s realization she made an error, but vindic-
tiveness.11
11
For some unexplained reason, the district court assumed that a prose-
cutor could act out of vindictiveness only at trial and beyond. This is not
true. A prosecutor is like any other human being, and can act out of vin-
dictiveness in her willingness to plea bargain or not. See Turner v. Tenes-
see, 940 F.2d 1000, 1001-02 (6th Cir. 1991), vacated on other grounds,
492 U.S. 902 (1989), reinstated in pertinent part, 940 F.2d 1000 (6th Cir.
1991) (where a defendant’s conviction was overturned on a habeas peti-
tion for ineffective assistance of counsel in advising the defendant to reject
a two-year plea bargain, the prosecution would be presumed to have acted
with vindictiveness if it failed to reinstate the original offer on remand).
 RIGGS v. FAIRMAN 2815
Perhaps a more charitable explanation than prosecutorial
vindictiveness for the five-year offer remaining open only
until the preliminary hearing is mere bureaucratic inertia. We
have seen the district attorney’s office had adopted a policy
of refusing to plea bargain on three strikes cases once the
defendant was bound over for trial, at the preliminary hearing.
The prosecutor’s office may have offered plea bargains in an
effort to avoid expending resources on preparing for the pre-
liminary hearing in petty theft cases. This could well have
motivated the prosecutor’s office policy of leaving offers
open, no matter their potential for charging three strike
enhancements, until the preliminary hearing, but not after-
wards, when the efforts and resources had been spent.

Riggs could have entered his guilty plea at any time before
the preliminary hearing upon an informally noticed motion for
a change of plea, or at the arraignment. The district court
found Riggs would have accepted the plea offer by pleading
guilty; that is, of course, if he had received effective assis-
tance of counsel. That finding has not been appealed.

Finally, the record also belies the conclusion that the prose-
cutor would have withdrawn her offer once she realized her
mistake, if in fact she made a mistake at all. As noted, the
case making it clear that the prosecutor could charge the prior
offenses as separate strikes, People v. Campos, was published
on October 4, 1995, 12 days before the original Complaint
was filed on October 16, 1995, and 26 days before the prelim-
inary hearing on October 30, 1995. Under California law,
attorneys are charged with knowledge of the law. See In re
Marriage of Liu, 242 Cal. Rptr. 649, 656 (Cal. App. 1987).
Although Campos made it clear the prosecution could charge
Riggs’ prior convictions as separate strikes, the prosecution
filed a Complaint which did not allege four prior “serious or
violent” crimes (robberies); it then proceeded to leave open
the five-year offer open until the preliminary hearing.

When making the five-year offer, the prosecutor did not
even seek the nine-year maximum term she could get based
2816 RIGGS v. FAIRMAN
on the charge in the Complaint being a “second strike”, even
had Riggs not qualified for the three strikes law.

In spite of all this evidence, the majority’s opinion seems
to rely upon the logical fallacy post hoc, ergo procter hoc to
conclude that because the Information was amended to charge
Riggs with a violation of the three strikes law after Campos
came down, it must have been the Campos decision that made
the prosecutor “realize” she could charge Riggs with a viola-
tion of the three strikes law in the Information. But, as shown
above, there is no evidence that the prosecutor ever made a
mistake at all, and furthermore, Campos was published before
the five-year offer was made.

Thus, the evidence in the record actually compels the con-
clusions that the prosecution knew Riggs’ prior criminal his-
tory and was charged with knowledge that it could charge
Riggs with three strikes. Nevertheless, consistent with the pol-
icy of the prosecutor’s office, the prosecutor intentionally
offered Riggs a plea of five years.

C. The Prosecution Is Not Entitled to Relief from
Ineffective Assistance of Counsel Under the Sixth
Amendment

Even if the prosecution had made a mistake of law in offer-
ing the five-year plea offer, there is no basis for returning the
state to a “pre-error stage” as does the majority opinion.

The Sixth Amendment does not protect the state from inef-
fective assistance of counsel, it protects only the criminal
defendant:

In all criminal prosecutions, the accused shall enjoy
the right . . . to have the Assistance of Counsel for
his defense.

U.S. CONST. amend VI (emphasis added). “No court, however,
has ever held that the Sixth Amendment protects the rights of
 RIGGS v. FAIRMAN 2817
anyone other than criminal defendants.” Portman v. County of
Santa Clara, 995 F.2d 898, 902 (9th Cir. 1993).

Indeed, once a habeas petitioner prevails on a claim of inef-
fective assistance of counsel, the state bears the risk of consti-
tutionally deficient counsel. Kimmelman, 477 U.S. at 379.
The state has no remedy for its own ineffective assistance of
counsel, and must bear the risk of ineffective assistance of
defense counsel. Therefore, “even if one might perceive that
the government’s competing interest might be infringed by
requiring that the original offer be reinstated, a contrary result
would impermissibly shift the risk of ineffective assistance of
counsel from the government to [the defendant].” Blaylock,
20 F.3d at 1469.

The majority opinion holds that the remedy fashioned by
the district court was within the district court’s discretion. As
a general principle, trial courts usually do have broad discre-
tion to fashion remedies. But not where the law mandates that
the remedy effect a specific result. Blaylock mandates that the
remedy “should put the defendant back in the position he
would have been in if the Sixth Amendment violation had not
occurred.” 20 F.3d at 1468. The district court’s remedy does
not effect this result. Whatever discretion a trial court has to
fashion remedies, it is not unchecked. A remedy that does not
correct the constitutional violation is an abuse of discretion.
Hoptowit v. Ray, 682 F.2d 1237, 1245-46 (9th Cir. 1982).

D. The United States Constitution Limits California Law
Permitting the Prosecutor to Withdraw a Plea Offer at
Any Time

The majority’s conclusion also depends on People v. Rho-
den, 75 Cal. App. 4th 1346, 1354 (1999). In Rhoden, the pros-
ecutor made Rhoden a plea offer one morning during trial.
The defendant promised to plead guilty. The parties signed an
agreement to this effect. But when the trial reconvened later
that afternoon, and before the defendant could plead guilty,
2818 RIGGS v. FAIRMAN
the prosecutor had received a favorable ruling on the scope of
cross-examination, and decided that he no longer wished to
offer a plea bargain. The prosecutor withdrew the offer. The
trial court held that it could not force the prosecution to keep
its promise.

The California Court of Appeal affirmed. The court held
that, although the parties had signed an agreement in which
the defendant promised to plead guilty, and the prosecution
promised to dismiss two of the counts charged (normally a
binding bilateral contract), the court could not force either
party to perform the agreement until the defendant either
pleaded guilty or otherwise detrimentally relied on the prom-
ise because “unexecuted plea bargains are analogous to unilat-
eral contracts.” 75 Cal. App. 4th at 1354. “Although we do
not believe that plea bargains in criminal cases can be gov-
erned by civil contract principles, we find these cases persua-
sive and adopt the majority view that a prosecutor may
withdraw from a plea bargain before a defendant pleads guilty
or otherwise detrimentally relies on that bargain.” Id. at 1353-
54 (emphasis added).12

What the rule in Rhoden must mean is that the prosecutor
can withdraw an offer before the defendant pleads guilty or
otherwise detrimentally relies on the offer if the defendant is
adequately represented by counsel. What so limits the lan-
guage in Rhoden? The Sixth Amendment to the United States
Constitution as interpreted in Blaylock and Nunes.

The right of a prosecutor to withdraw an offer, as recog-
nized by Rhoden, is a right created by a court under state law.
It is, therefore, subordinate to the criminal defendant’s right
to effective assistance of counsel given to him by the United
12
That the prosecutor could have withdrawn the offer, however, is not
proof she would have. As demonstrated above, there simply is no proof
here the prosecutor would have withdrawn the offer because of Riggs’
vulnerability to a three strikes enhancement.
 RIGGS v. FAIRMAN 2819
States Constitution. If there is any direct conflict between the
state rule and the rights guaranteed by the federal Constitu-
tion, the latter must prevail. “This Constitution, and the Laws
of the United States which shall be made in Pursuance
thereof; and all Treaties made, or which shall be made, under
the Authority of the United States, shall be the supreme Law
of the Land; and the Judges in every State shall be bound
thereby, any Thing in the Constitution or Laws of any State
to the Contrary notwithstanding.” U.S. CONST. art. VI, cl. 2;
see also McCulloch v. Maryland, 17 U.S. 316, 426 (1819).

Accordingly, even though Nunes was a California state
prisoner, and therefore People v. Rhoden applied just as much
to his case as to this case, the prosecutor was not totally free
to withdraw the offer after our remand. Otherwise, our orders
in Blaylock and Nunes would have been useless and a non-
sense. For instance, our remand order was to release Nunes
unless the plea offer was reinstated. Our order did not allow
the plea offer to be withdrawn and for the case to proceed to
trial. If the offer were not reinstated, Nunes went free, not to
trial. Nunes, 350 F.3d at 1049.

Our remand in Blaylock also implied that, depending on the
outcome of the evidentiary hearing, Blaylock would be enti-
tled to have the original offer reinstated, so he could accept
the offer and proceed to the agreed sentencing rather than to
trial. Blaylock, 20 F.3d at 1468-69.

Even if the prosecutor could have withdrawn her five-year
offer before Riggs pleaded guilty, the district court here has
necessarily found the prosecutor would not have so with-
drawn the offer. This follows from the district court’s finding
that Riggs met Strickland’s requirement that he prove that
“but for counsel’s unprofessional errors, the result would have
been different.” Riggs, 178 F. Supp. 2d at 1149-51; see also
Strickland v. Washington, 466 U.S. 668, 694 (1993). This
finding also was not appealed by the state. Necessarily
implicit in the district court’s finding that with competent
2820 RIGGS v. FAIRMAN
counsel “the result would have been different” is the factual
finding the state would not have withdrawn its offer. After all,
if we are to assume, as does the majority, the state would have
withdrawn its offer, then Riggs would have suffered no preju-
dice from his counsel’s errors and the district court would not
have found Riggs satisfied the necessary second prong for
Strickland error.

III

Having found that the habeas corpus writ should be
granted, Riggs is entitled to be put back in the position he
would have been in had his counsel been effective. Nunes,
350 F.3d at 1057 (“if the state puts him in the same position
he would have been in had he received effective counsel, that
would cure the constitutional error”). The district court did
not have discretion to fashion a remedy that does not cure the
undisputed constitutional error that occurred here.

Because Riggs has already served two years longer than he
would have under the five-year plea offer, we should enter an
order that Riggs has served his time and he should remain a
free man. Accordingly, I respectfully dissent.