Kirk Rishor v. Bob Ferguson

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

KIRK RISHOR, No. 14-36071
Petitioner-Appellee,
D.C. No.
v. 2:11-cv-01492-
MJP
BOB FERGUSON, Attorney General
for the State of Washington,
Respondent-Appellant. OPINION

Appeal from the United States District Court
for the Western District of Washington
Marsha J. Pechman, Chief District Judge, Presiding

Argued and Submitted
December 11, 2015—Seattle, Washington

Filed May 6, 2016

Before: Michael Daly Hawkins and Richard C. Tallman,
Circuit Judges and Joan Humphrey Lefkow,* Senior
District Judge.

Opinion by Judge Tallman

*
The Honorable Joan Humphrey Lefkow, Senior United States District
Judge for the Northern District of Illinois, sitting by designation.
2 RISHOR V. FERGUSON

SUMMARY**

Habeas Corpus

The panel reversed the district court’s judgment granting,
on reconsideration, habeas corpus relief to Kirk Rishor –
who, on remand from the Washington Court of Appeals, pled
guilty to second degree assault – and remanded for
reinstatement of the district court’s judgment denying habeas
relief.

The panel held that a motion pursuant to Fed. R. Civ. P.
59(e) that raises entirely new claims should be construed as
a second or successive habeas petition subject to AEDPA’s
restrictions; and that a Rule 59(e) motion raises a “new
claim” when it seeks to add a ground for relief not articulated
in the original federal habeas petition, presents newly
discovered evidence, or seeks relief based on a subsequent
change in the law. The panel wrote that, in contrast, a timely
Rule 59(e) motion that asks the district court to “correct
manifest errors of law or fact upon which the judgment rests”
should not be construed as a second or successive petition.

The panel held that Rishor’s Rule 59(e) motion – which
asked the district court to reconsider whether the state court
violated clearly established federal law (1) by holding that
Rishor had validly waived counsel on remand, and (2) by
holding that the prosecution did not violate double jeopardy
principles on remand – did not raise “new claims,” and that
the district court therefore had jurisdiction to consider the

**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 RISHOR V. FERGUSON 3

post-judgment motion in the first instance without seeking
pre-certification by the Court of Appeals under 28 U.S.C.
§ 2244(b)(3)(A).

Applying AEDPA review on the merits, the panel held
that the district court abused its discretion by granting
reconsideration and awarding Rishor habeas relief. As to
Rishor’s waiver of counsel claim, the panel held that the
district court erred by finding that the United States Supreme
Court had authored clearly established law on whether a
defendant, who has validly waived counsel before his first
trial, is entitled to a second Faretta hearing on remand. The
panel could not say that the Washington Supreme Court’s
alternative holding – that Rishor was not prejudiced by the
court’s failure to secure a second waiver of counsel – was
contrary to, or an unreasonable application of, clearly
established federal law.

The panel held that the district court also erred in granting
habeas relief on Rishor’s claim that the state improperly re-
filed first degree assault charges on remand in violation of his
rights under the Double Jeopardy Clause. The panel could
not say that the Washington Supreme Court’s determination
that Rishor’s guilty plea to second degree assault was “wholly
voluntary” was based on an unreasonable determination of
the facts in light of the evidence, or was contrary to, or
involved an unreasonable application of clearly established
federal law. The panel explained that the fact that the state
re-charged Rishor with first degree assault does not
undermine the voluntariness of his guilty plea to second
degree assault. The panel concluded that since this court
must defer to the Washington Supreme Court’s decision that
Rishor’s guilty plea was valid, Rishor could not attack his
4 RISHOR V. FERGUSON

conviction based on a constitutional violation that occurred
prior to his guilty plea.

COUNSEL

Alex Kostin (argued), Assistant Attorney General; Robert W.
Ferguson, Attorney General, Olympia, Washington, for
Respondent-Appellant.

Todd Maybrown, Allen, Hansen & Maybrown, Seattle,
Washington, for Petitioner-Appellee.

OPINION

TALLMAN, Circuit Judge:

Kirk Rishor waived counsel and represented himself
during his 2004 trial in Washington’s Whatcom County
Superior Court on charges of first degree assault, second
degree assault, and unlawful possession of a firearm. The
jury convicted him on the unlawful possession charge but
acquitted him on the two charged counts of second degree
assault. The jury, however, impliedly acquitted Rishor on
first degree assault, and convicted him instead of the lesser-
included offense of second degree assault.

Rishor’s conviction was reversed by the Washington
Court of Appeals, and on remand, Rishor pled guilty to
second degree assault. Despite pleading guilty, Rishor
commenced a series of post-judgment motions in superior
court challenging his conviction. After exhausting review of
his conviction in state court, Rishor petitioned the federal
 RISHOR V. FERGUSON 5

district court for habeas relief under 28 U.S.C. § 2254,
arguing that he did not validly waive counsel and that the
State violated double jeopardy principles on remand. The
district court initially dismissed Rishor’s habeas petition with
prejudice, and Rishor then filed a motion for reconsideration.
In 2014, nearly a year later, the district court granted Rishor’s
motion for reconsideration, vacated its prior judgment, and
granted habeas relief. We now reverse the district court’s
judgment and remand for reinstatement of the judgment
denying habeas relief.

I

In May 2004, Kirk Rishor proceeded to trial in Whatcom
County Superior Court on charges of first degree assault
(count 1), second degree assault (counts 2 and 3), and first
degree unlawful possession of a firearm (count 4). In a pre-
trial hearing, Rishor informed Judge Steven J. Mura, the
superior court judge assigned to the trial, that he wished to
proceed pro se. Judge Mura fully advised Rishor of the risks
and responsibilities associated with self-representation and
attempted to dissuade Rishor from waiving counsel.
Specifically, Judge Mura informed Rishor that he would not
be able to claim ineffective assistance of counsel on appeal,
that he would be responsible for putting together proposed
jury instructions, and that he would be bound by the same
rules as lawyers—including the rules of evidence and ethics.
Judge Mura and Rishor also engaged in the following
colloquy:

THE COURT: [I]n my 30 years of being on
both sides of the courtroom as a defense
counsel, prosecutor and now 12 years as a
judge in a criminal case I have never seen
6 RISHOR V. FERGUSON

anybody who has ever represented themselves
competently; do you understand that?

THE DEFENDANT: Yes, I do.

THE COURT: If you represent yourself
incompetently you’re stuck with you and you
suffer the consequences. The consequences if
convicted, the State informs me, is a sentence
of life without possibility of parole.

THE DEFENDANT: Yes, sir. I fully
understand that.

THE COURT: And that as a practical matter
if you represent yourself—and this is just me
talking up here.

THE DEFENDANT: Okay.

THE COURT: As a practical matter the court
might as well sign an order sending you to
prison without possibility of parole right now
because you’re going to screw your case up;
do you understand that?

Despite these warnings, Rishor confirmed his desire to
proceed pro se, Judge Mura approved the request, and Rishor
(assisted by standby counsel) ably represented himself
throughout his jury trial.

Ultimately, the jury acquitted Rishor on the two charged
counts of second degree assault (counts 2 and 3) and
convicted him on the charge of unlawful possession of a
 RISHOR V. FERGUSON 7

firearm (count 4). The jury, however, impliedly acquitted
Rishor on the greater charge of first degree assault (count 1)1
and convicted Rishor of the lesser-included offense of second
degree assault. The jury also made a special finding that
Rishor was armed with a firearm at the time of the assault.
Rishor was sentenced to 115 months confinement on the
assault charge, which included 36 months for the weapon
enhancement, and 102 months on the unlawful possession
charge. All sentences were ordered to run concurrently.

On direct review, the Washington Court of Appeals
reversed Rishor’s second degree assault conviction due to
erroneous jury instructions and remanded the case back to the
superior court for a new trial on that charge. On November
2, 2006, the parties again met with Judge Mura, the same
judge who had presided over Rishor’s first trial, to “reiterate
[Rishor’s] request to proceed in a pro se basis.” At this initial
hearing on remand, Rishor requested that Thomas Fryer be
appointed as his standby counsel to assist him with filing
motions from jail because incarceration made it difficult for
Rishor to do so. Judge Mura instructed Rishor to draft an
order appointing Fryer as standby counsel, which Rishor
subsequently prepared and filed with the court several days
later.

On remand, the State initially filed a first amended
information charging Rishor with one count of first degree

1
Here, the jury failed to reach a verdict on first degree assault and,
instead, convicted Rishor of the lesser charge of second degree assault.
This amounts to an implied acquittal under our decision in Brazzel v.
Washington, which held that “when a jury convicts on a lesser alternate
charge and fails to reach a verdict on the greater charge . . . the jury’s
silence on the second charge is an implied acquittal.” 491 F.3d 976, 978
(9th Cir. 2007) (citation omitted).
8 RISHOR V. FERGUSON

assault while armed with a deadly weapon, the same conduct
for which the jury impliedly acquitted Rishor at his first trial.
On January 8, 2007, the State filed a second amended
information charging Rishor with second degree assault
without a firearm allegation, and that same day Rishor
entered a guilty plea to that unenhanced charge. At his plea
hearing, Rishor explained that he was pleading guilty “freely
and voluntarily.” He acknowledged that the plea agreement
allowed him to avoid the weapon enhancement. He also
stated that he wanted to take the plea so that his daughter,
who was about to start college, would not have to come back
for a second trial. The court imposed an 84-month sentence
on the second degree assault charge, which was ordered to
run concurrently with Rishor’s 102-month unlawful
possession conviction.

Rishor then, through counsel, appealed his new sentence
to the Washington Court of Appeals, arguing that the
prosecutor breached the plea agreement by urging the trial
court to impose a higher sentence on the unlawful possession
charge.2 The Washington Court of Appeals affirmed Rishor’s
judgment and sentence, and Rishor did not seek further
review from the Washington Supreme Court.

On January 10, 2008, Rishor filed a motion to withdraw
his guilty plea and a state habeas petition in Whatcom County
Superior Court. In his post-judgment motion and state habeas
petition, Rishor argued that he was not formally arraigned on

2
At his second sentencing hearing, Rishor asked the court to impose an
84-month sentence on the unlawful possession charge and the State
recommended a new sentence of 115 months. The court rejected both
recommendations and imposed the same concurrent sentence of 102
months as it had done previously.
 RISHOR V. FERGUSON 9

remand, he was coerced into pleading guilty, and he did not
adequately waive his right to counsel following remand.
Rishor’s post-judgment motion and petition were eventually
transferred to the Washington Court of Appeals for
consideration as a collateral state habeas petition, called a
“personal restraint petition” (PRP), which was dismissed on
March 8, 2010.

On September 9, 2010, the Washington Supreme Court
denied Rishor’s motion for discretionary review. Relevant to
this appeal, the Washington Supreme Court found that Rishor
had validly waived his right to counsel before his original
trial and that Rishor was “more than ready to proceed pro se”
on remand. The court also found that Rishor’s standby
counsel had waived Rishor’s right to first appearance and
formal arraignment on remand. Finally, the court rejected
Rishor’s claim that he was coerced into pleading guilty and
found that Rishor’s plea was “wholly voluntary.”

Next, Rishor filed a federal habeas corpus petition under
28 U.S.C. § 2254 in the United States District Court for the
Western District of Washington. Rishor alleged that he was
entitled to relief on three grounds stemming from his remand
proceedings: (1) he did not receive notice of the charges
against him, (2) he was not arraigned, and (3) he did not
validly waive counsel. Rishor also filed a supplemental brief
in connection with his habeas petition that argued that the
prosecution violated double jeopardy principles on remand by
initially recharging him with first degree assault, conduct on
which the jury had acquitted him during his first trial.3 On

3
The parties contest whether Rishor fairly presented his double jeopardy
claim in state court. However, Rishor’s appeal does not require us to
decide this issue for the reasons explained in Part V of this opinion.
10 RISHOR V. FERGUSON

October 28, 2013, United States Magistrate Judge James P.
Donohue issued a Report and Recommendation, concluding
that the district court should deny the habeas petition with
prejudice. Chief United States District Judge Marsha J.
Pechman adopted the Report and Recommendation,
dismissed the habeas petition with prejudice, and entered
judgment against Rishor.

Rishor then filed a motion for reconsideration—the
subject of this appeal. Rishor asked the district court to
reconsider whether he was entitled to habeas relief on the
ground that he did not validly waive counsel on remand.
Rishor also asked the district court to reconsider whether he
was entitled to habeas relief on the ground that the
prosecution had violated due process and double jeopardy
principles by failing to re-arraign him and re-charging him
with first degree assault in order to secure a plea bargain.4

On December 3, 2014, the district court granted Rishor’s
motion to reconsider and vacated its prior judgment. The
court held that the Washington Supreme Court’s decision was
contrary to, or an unreasonable application of, clearly
established federal law and that Rishor was entitled to habeas
relief on both his waiver of counsel and double jeopardy
claims. The State timely appealed.

II

Our review in this case is guided in part by the
Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), Pub. L. No. 104–132, 110 Stat. 1214 (1996). The

4
In its order denying Rishor’s habeas petition, the district court did not
discuss Rishor’s double jeopardy claim.
 RISHOR V. FERGUSON 11

provisions of AEDPA “create an independent, high standard
to be met before a federal court may issue a writ of habeas
corpus to set aside state-court rulings.” Uttecht v. Brown,
551 U.S. 1, 10 (2007). As the Supreme Court has made clear,
“‘[t]his is a ‘difficult to meet,’ and ‘highly deferential
standard for evaluating state-court rulings, which demands
that state-court decisions be given the benefit of the doubt.’”
Cullen v. Pinholster, 563 U.S. 170, 182 (2011) (quoting
Woodford v. Visciotti, 537 U.S. 19, 24 (2002)).

Under AEDPA, a state prisoner’s habeas petition shall not
be granted with respect to any claim that was adjudicated on
the merits in state court proceedings unless the adjudication
of the claim—

(1) resulted in a decision that was contrary to,
or involved an unreasonable application of,
clearly established Federal law, as determined
by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an
unreasonable determination of the facts in
light of the evidence presented in the State
court proceeding.

28 U.S.C. § 2254(d).

Finally, before we proceed to apply AEDPA’s standards
in this case, we must identify the state court decision that is
appropriate for our review. “When more than one state court
has adjudicated a claim, we analyze the last reasoned
decision.” Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir.
2005). Here, the last reasoned state court decision is the
Washington Supreme Court’s denial of discretionary review
12 RISHOR V. FERGUSON

of Rishor’s personal restraint petition dismissal. See id. at
1091–92 (holding that a seven-page order from the
Washington Supreme Court denying review of a PRP was the
last reasoned state court decision).

III

As an initial matter, we must determine whether the
district court had jurisdiction to rule on Rishor’s motion for
reconsideration, and whether we, in turn, have jurisdiction to
review it on appeal. The district court properly construed
Rishor’s post-judgment motion for reconsideration,5 filed
within twenty-eight days of entry of judgment, as a motion to
alter or amend the judgment under Federal Rule of Civil
Procedure 59(e). See Am. Ironworks & Erectors, Inc. v. N.
Am. Const. Corp., 248 F.3d 892, 898–99 (9th Cir. 2001);
11 Charles Alan Wright & Arthur R. Miller, Federal Practice
and Procedure § 2810.1 (2012) (“Rule 59(e) does, however,
include motions for reconsideration.”). The question
presented, therefore, is whether Rishor’s Rule 59(e) motion
is subject to the additional restrictions that apply to “second
or successive” habeas corpus petitions under the provisions
of AEDPA. Whether Rishor’s motion should be construed as
a second or successive habeas petition is a conclusion of law
that we review de novo. Riordan v. State Farm Mut. Auto.
Ins., 589 F.3d 999, 1004 (9th Cir. 2009).

5
Rishor’s post-judgment motion was filed pursuant to Western District
of Washington Local Rule 7(h), which provides that motions for
reconsideration “shall be filed within fourteen days after the order to
which it relates is filed.” Local Rules W.D. Wash. LCR 7(h)(2).
 RISHOR V. FERGUSON 13

A

AEDPA’s restrictions on second or successive habeas
petitions prevent “the repeated filing of habeas petitions that
attack the prisoner’s underlying conviction.” Leal Garcia v.
Quarterman, 573 F.3d 214, 220 (5th Cir. 2009).
Accordingly, AEDPA instructs us to dismiss any claim
“presented in a second or successive habeas corpus
application” that the petitioner “presented in a prior
application.” 28 U.S.C. § 2244(b)(1). If a petitioner presents
a new claim in a second or successive habeas corpus
application, we must also dismiss that claim unless one of
two exceptions applies:

(A) the applicant shows that the claim relies
on a new rule of constitutional law, made
retroactive to cases on collateral review by the
Supreme Court, that was previously
unavailable; or

(B)(i) the factual predicate for the claim could
not have been discovered previously through
the exercise of due diligence; and

(ii) the facts underlying the claim, if proven
and viewed in light of the evidence as a
whole, would be sufficient to establish by
clear and convincing evidence that, but for
constitutional error, no reasonable factfinder
would have found the applicant guilty of the
underlying offense.

Id. § 2244(b)(2)(A)–(B)(ii). “Before a second or successive
application permitted by this section is filed in the district
14 RISHOR V. FERGUSON

court, the applicant shall move in the appropriate court of
appeals for an order authorizing the district court to consider
the application.” Id. § 2244(b)(3)(A). A petitioner’s failure
to seek such authorization from the appropriate appellate
court before filing a second or successive habeas petition acts
as a jurisdictional bar. United States v. Key, 205 F.3d 773,
774 (5th Cir. 2000).

B

Our discussion of this issue begins with the Supreme
Court’s decision in Gonzalez v. Crosby, 545 U.S. 524 (2005).
There, the Supreme Court addressed when a federal court
should construe a petitioner’s Rule 60(b)6 motion as a second
or successive habeas petition subject to the restrictions of
AEDPA. Id. at 526. Although Gonzalez limited its holding
to Rule 60(b) motions, our sister circuits have split on
whether Gonzalez’s holding extends to Rule 59(e) motions,
such as Rishor’s post-judgment motion for reconsideration.
See id. at 529 n.3 (“In this case we consider only the extent to
which Rule 60(b) applies to habeas proceedings under
28 U.S.C. § 2254, which governs federal habeas relief for
prisoners convicted in state court.”).

Gonzalez explained that the Rules of Civil Procedure
apply “in habeas corpus proceedings under 28 U.S.C. § 2254
only to the extent” that they are “not inconsistent” with the
“statutory provisions and rules” of AEDPA. Id. at 529. The
Court also noted that “[a]s a textual matter, § 2244(b) applies

6
“Rule 60(b) allows a party to seek relief from a final judgment, and
request reopening of his case, under a limited set of circumstances
including fraud, mistake, and newly discovered evidence.” Gonzalez,
545 U.S. at 528.
 RISHOR V. FERGUSON 15

only where the court acts pursuant to a prisoner’s
‘application’ for a writ of habeas corpus,” and that “an
‘application’ for habeas relief is a filing that contains one or
more ‘claims.’” Id. at 530.

Accordingly, Gonzalez held that a Rule 60(b) motion is
subject to AEDPA’s restrictions when the motion advances
one or more claims, such as a motion that: seeks to present
newly discovered evidence, seeks to add a new ground for
relief, attacks the resolution of a claim on the merits, or seeks
to vacate the judgment because of a subsequent change in
substantive law. Id. at 531. “A habeas petitioner’s filing that
seeks vindication of such a claim is, if not in substance a
‘habeas corpus application,’ at least similar enough that
failing to subject it to the same requirements would be
‘inconsistent with’ the statute.” Id. This is so because

[u]sing Rule 60(b) to present new claims for
relief from a state court’s judgment of
conviction—even claims couched in the
language of a true Rule 60(b) motion—
circumvents AEDPA’s requirement that a new
claim be dismissed unless it relies on either a
new rule of constitutional law or newly
discovered facts.

Id. In contrast, a Rule 60(b) motion that “attacks, not the
substance of the federal court’s resolution of a claim on the
merits, but some defect in the integrity of the federal habeas
proceedings,” should not be construed as a second or
successive habeas petition. Id. at 532.
16 RISHOR V. FERGUSON

C

Our sister circuits disagree over the application of
Gonzalez and second-or-successive principles to Rule 59(e)
motions. The Fifth, Eighth, Tenth, and Fourth Circuits have
concluded that a Rule 59(e) motion that advances a “claim”
as defined by Gonzalez should be construed as a second or
successive habeas petition. See Williams v. Thaler, 602 F.3d
291, 303–05 (5th Cir. 2010); Ward v. Norris, 577 F.3d 925,
935 (8th Cir. 2009); United States v. Pedraza, 466 F.3d 932,
934 (10th Cir. 2006); United States v. Martin, 132 Fed. App’x
450, 451 (4th Cir. 2005) (unpublished).7 The Third, Sixth,
and Seventh Circuits have held that a Rule 59(e) motion
should never be construed as a second or successive habeas
petition, whether or not it advances a Gonzalez claim.
Blystone v. Horn, 664 F.3d 397, 415 (3d Cir. 2011); Howard
v. United States, 533 F.3d 472, 475–76 (6th Cir. 2008); Curry
v. United States, 307 F.3d 664, 665 (7th Cir. 2002).

Today we address this issue for the first time. We have
previously held that altering or amending a judgment under
Rule 59(e) is an “extraordinary remedy” usually available
only when (1) the court committed manifest errors of law or
fact, (2) the court is presented with newly discovered or
previously unavailable evidence, (3) the decision was
manifestly unjust, or (4) there is an intervening change in the
controlling law. Allstate Ins. Co. v. Herron, 634 F.3d 1101,
1111 (9th Cir. 2011) (citing McDowell v. Calderon, 197 F.3d
1253, 1255 n.1 (9th Cir. 1999) (en banc)). We have also held
that a Rule 59(e) motion may not be used to “raise arguments

7
See also United States v. Winestock, 340 F.3d 200, 203 n.1 (4th Cir.
2003) (treating all motions for reconsideration, whether filed under Rule
59 or Rule 60, as subject to AEDPA’s successive petition rule).
 RISHOR V. FERGUSON 17

or present evidence for the first time when they could
reasonably have been raised earlier in the litigation.” Id.
(citing Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877,
890 (9th Cir. 2000)).

We now hold that a Rule 59(e) motion that raises entirely
new claims should be construed as a second or successive
habeas petition subject to AEDPA’s restrictions. A Rule
59(e) motion raises a “new claim” when the motion seeks to
add a ground for relief not articulated in the original federal
habeas petition, presents newly discovered evidence, or seeks
relief based on a subsequent change in the law. In contrast,
a timely Rule 59(e) motion that asks the district court to
“correct manifest errors of law or fact upon which the
judgment rests” should not be construed as a second or
successive habeas petition.

Accordingly, a district court presented with a motion for
reconsideration in a habeas case must first determine whether
the motion should be construed as a second or successive
habeas petition: that is whether it seeks to raise an argument
or ground for relief that was not raised in the initial habeas
petition.8 If so, the district court should dismiss the motion
without prejudice to allow the applicant to move in the Court
of Appeals for an order authorizing the district court to
consider the second habeas application. However, the district

8
We note that in other contexts a Rule 59(e) motion may be granted to
allow a movant to present newly discovered evidence or an intervening
change in controlling law. In the context of habeas proceedings, however,
a Rule 59(e) motion raising such grounds for relief is in “substance” a
second habeas petition subject to § 2244(b)’s additional restrictions. A
habeas petitioner may certainly still bring these arguments in a second
petition if the additional and more restrictive requirements of § 2244(b)
are met.
18 RISHOR V. FERGUSON

court may proceed to consider the merits of a Rule 59(e)
motion that is filed within twenty-eight days of judgment and
asks the court to correct errors of fact or law. As always, the
district court will “enjoy[] considerable discretion in granting
or denying the motion.” Id. (citing McDowell, 197 F.3d at
1255 n.1).

The approach we adopt today is, in essence, a hybrid of
the approaches adopted by our sister circuits thus far. The
Fifth, Eighth, Tenth, and Fourth Circuits apply Gonzalez to
Rule 59(e) motions that raise both previously adjudicated
claims and new claims. We decline to adopt this approach,
as it “attribute[s] to Congress the unlikely intent to preclude
broadly the reconsideration of just-entered judgments.”
Howard, 533 F.3d at 475; see id. (“If the holding of Gonzalez
applied to Rule 59(e) motions, it would almost always be
effectively impossible for a district court to correct flaws in
its reasoning, even when the problems were immediately
pointed out and could easily be fixed by that court.”). We see
no sign that Congress intended AEDPA to vitiate the district
court’s power to “rectify its own mistakes in the period
immediately following the entry of judgment,” obviating the
time and expense of unnecessary appellate proceedings.
White v. N.H. Dep’t of Emp’t Sec., 455 U.S. 445, 450 (1982).

We similarly decline to adopt the approach of the Third,
Sixth, and Seventh Circuits, which never applies Gonzalez or
AEDPA to Rule 59(e) motions. While this bright-line
approach may be easy to apply, it allows district courts to
improperly entertain Rule 59(e) motions that are “in
substance” second habeas petitions. See, e.g., Howard,
533 F.3d at 473 (errors in sentencing raised for the first time
in a Rule 59(e) motion); see also Gonzalez, 545 U.S. at 531
 RISHOR V. FERGUSON 19

(instructing courts to focus on the “substance” rather than the
label of the post-judgment motion).

For these reasons, we depart from our sister circuits and
hold that Gonzalez and § 2244(b) apply to Rule 59(e) motions
only when the motion raises entirely new claims. We believe
this approach properly recognizes the key distinctions
between post-judgment motions under Rules 59 and 60. A
motion for reconsideration under Rule 59(e) suspends the
finality of the judgment and tolls the time for appeal until the
motion is resolved.9 See Fed. R. App. P. 4(a)(4)(A);
Blystone, 664 F.3d at 414. Accordingly, a timely Rule 59(e)
motion is “neither a collateral attack on the initial habeas
judgment, nor a new collateral attack on the underlying
criminal judgment—rather it is part and parcel of the
petitioner’s one full opportunity to seek collateral review.”
Blystone, 664 F.3d at 414 (internal quotation marks omitted).
A Rule 60(b) motion, in contrast, only comes into play after
the time to appeal has expired, the judgment has become
final, and the petitioner has “expended the one full
opportunity to seek collateral review that AEDPA ensures.”
Id. at 413 (internal quotation marks omitted). Accordingly,
a Rule 60(b) motion that raises a Gonzalez claim marks the
start of a second round of habeas litigation, triggering
AEDPA’s additional restrictions. See 28 U.S.C. § 2244(b).

While we recognize that motions for reconsideration
pursuant to Rule 59(e) can be consistent with AEDPA, we

9
Rule 60(b) motions filed within twenty-eight days of entry of judgment
also toll the time to appeal, Fed. R. App. P. 4(a)(4)(A)(vi), but such
motions are treated as Rule 59 motions. See Am. Ironworks, 248 F.3d at
898–99; see also Fed. R. App. P. 4 advisory committee’s note to the 1993
amendment.
20 RISHOR V. FERGUSON

cannot say that Rule 59(e) motions should never be construed
as second habeas petitions. Experience has taught us that
habeas petitioners sometimes use Rule 59(e) improperly—to
raise entirely new claims. See, e.g., Howard, 533 F.3d at 473
(errors in sentencing raised for the first time in Rule 59(e)
motion). Such a post-judgment motion, although “labeled”
a Rule 59(e) motion, is in substance a second habeas petition
that clearly “require[s] Court of Appeals permission to be
filed and considered.” Id. at 476 (Boggs, J., dissenting).
Accordingly, when faced with such a post-judgment motion,
district courts should follow Gonzalez’s teaching and
preclude a petitioner from improperly using Rule 59(e) to
“circumvent[] AEDPA’s requirement that a new claim be
dismissed unless it relies on either a new rule of
constitutional law or newly discovered facts.” Gonzalez,
545 U.S. at 531.

In sum, we hold that a motion for reconsideration filed
within twenty-eight days of judgment that raises a new claim,
including one based on newly discovered evidence or an
intervening change in substantive law, is subject to AEDPA’s
second-or-successive petition bar. However, a timely motion
for reconsideration that asks the district court to reconsider a
previously adjudicated claim on grounds already raised
should not be construed as a second or successive habeas
petition subject to AEDPA’s additional restrictions. See 28
U.S.C. § 2244(b).

D

We now turn to Rishor’s motion for reconsideration to
determine whether it raised any “new claims” such that it
should be construed as a second or successive habeas petition.
We conclude that it did not.
 RISHOR V. FERGUSON 21

Rishor’s Rule 59(e) motion asked the court to reconsider
two issues: (1) whether the state court violated clearly
established federal law when it held that Rishor had validly
waived counsel on remand, and (2) whether the state court
violated clearly established federal law by holding that the
prosecution did not violate double jeopardy principles on
remand.10 Rishor’s habeas petition argued that he did not
validly waive counsel on remand, in violation of the Sixth
Amendment. Accordingly, Rishor did not raise his waiver of
counsel claim for the first time in his motion for
reconsideration.

Nor can we say that Rishor raised his double jeopardy
argument for the first time in his post-judgment motion.
Rishor’s handwritten habeas “form” petition alleged that he
was not arraigned on remand and did not receive notice of the
charges filed against him. Neither of these claims implicate
double jeopardy principles on their face. However, the
standard form Rishor used to fill out his habeas petition
instructed him not to argue or cite law. And, just seven days
later, Rishor filed a supplemental brief and argued:

The state had no legal authority to re-file first
degree assault charges against the petitioner.

10
Rishor’s motion for reconsideration also asked the district court to
reconsider whether his due process rights were violated when he was not
re-arraigned or given notice of the charges filed against him on remand.
The district court, however, only granted reconsideration on Rishor’s
double jeopardy claim. Rishor does not argue this his due process rights
were violated on appeal. We therefore decline to consider this issue. See
Chadd v. United States, 794 F.3d 1104, 1109 n.4 (9th Cir. 2015).
Nonetheless, these issues are still relevant as to whether Rishor’s guilty
plea was knowing and voluntary. This issue is discussed in Section V.A
of this opinion.
22 RISHOR V. FERGUSON

State v. ahluwalia, 143 Wn. 2. 527, 540. . .41,
22 p. 3d. 1254 (2001) [sic] as demonstrated by
the discussion in ahluwalia and arraignment is
required afther [sic] a reversal, especially
when an amended information is filled [sic]
and there is a basis to be confused about the
charges . . . .

In State v. Ahluwalia, 143 Wash. 2d 527, 529 (Wash. 2001),
the Washington Supreme Court addressed whether federal
and state constitutional double jeopardy principles were
violated when Ahluwalia was retried for second degree
murder after his first trial ended in a mistrial because the jury
was unable to reach a verdict on that charge. The Ahluwalia
court held that constitutional double jeopardy principles bar
a defendant’s retrial only on charges for which a defendant
was definitively convicted or acquitted in a previous trial. Id.
at 536–39. Ultimately, the Washington Supreme Court held
that Ahluwalia’s retrial for second degree murder did not
violate double jeopardy principles because Ahluwalia was
neither acquitted nor convicted of that charge at his first trial;
rather, the jury had merely been unable to reach a verdict. Id.
at 541.

Although Ahluwalia’s facts are distinguishable from
Rishor’s case, Ahluwalia discussed double jeopardy
principles at length. In addition, Rishor unequivocally stated
in his supplemental briefing that “[t]he state had no legal
authority to re-file first degree assault charges.” On the other
hand, it is unclear from Rishor’s arguments whether he
understood that a court’s failure to re-arraign a defendant and
give him notice of the charges against him is a separate and
distinct argument from whether double jeopardy principles
were violated. Rishor failed to make these arguments
 RISHOR V. FERGUSON 23

separately and distinctly. Nonetheless, we give Rishor’s
arguments the “benefit of liberal construction,” and conclude
that he adequately raised his double jeopardy claim in his
initial habeas filings. Porter v. Ollison, 620 F.3d 952, 958
(9th Cir. 2010); see also Erickson v. Pardus, 551 U.S. 89, 94
(2007) (“A document filed pro se is to be liberally
construed.”).

In sum, we hold that Rishor’s motion for reconsideration
properly asked the district court to reconsider the merits of
two claims that were raised in Rishor’s initial habeas petition.
Rishor’s motion for reconsideration was, therefore, part and
parcel of his one full opportunity to seek habeas relief and
should not be construed as a second or successive habeas
petition. Accordingly, we conclude that the district court had
jurisdiction to consider Rishor’s post-judgment motion in the
first instance without seeking pre-certification by the Court of
Appeals under 28 U.S.C. § 2244(b)(3)(A).

IV

Having determined that the district court properly
exercised jurisdiction over Rishor’s motion for
reconsideration, we turn to the merits of the district court’s
ruling. On September 9, 2010, the Washington Supreme
Court denied discretionary relief on Rishor’s waiver of
counsel claim and held that “the record indicates that Rishor
was more than ready to proceed pro se with the active
assistance of standby counsel.” On reconsideration, the
district court held that this decision was contrary to, or an
unreasonable application of, clearly established federal law as
determined by the United States Supreme Court. We review
the district court’s grant of Rishor’s motion for
24 RISHOR V. FERGUSON

reconsideration for abuse of discretion. Allstate Ins. Co.,
634 F.3d at 1111.

A

The Sixth Amendment guarantees that in all criminal
prosecutions a defendant shall have the right to the assistance
of counsel for his defense. U.S. Const. amend. VI; Powell v.
Alabama, 287 U.S. 45, 66 (1932). The Sixth Amendment
also guarantees a defendant the right to refuse the assistance
of counsel and to represent himself in criminal proceedings.
Faretta v. California, 422 U.S. 806, 834 (1975). While a
defendant’s choice to proceed pro se “must be honored out of
‘that respect for the individual which is the lifeblood of the
law,’” id. (citing Illinois v. Allen, 397 U.S. 337, 350–51
(1970)), the Constitution “require[s] that any waiver of the
right to counsel be knowing, voluntary, and intelligent,” Iowa
v. Tovar, 541 U.S. 77, 88 (2004). In other words, a defendant
who requests to proceed pro se “must be warned specifically
of the hazards ahead.” Tovar, 541 U.S. at 89.

There is no doubt that Rishor’s waiver of counsel in 2004
was knowing, voluntary, and intelligent. He does not argue
to the contrary. How could he? Before his trial, Rishor
adamantly requested to proceed pro se even after Judge Mura
clearly warned him that he would be bound by all the same
rules as a lawyer, that he would almost certainly “screw up”
his case, and that he had never seen a pro se litigant
effectively represent himself.

Instead, Rishor relies on Faretta v. California, 422 U.S.
806 (1975), to argue that the Washington trial court’s failure
to conduct a second, formal Faretta hearing violated the Sixth
Amendment. In Faretta, the Supreme Court explained what
 RISHOR V. FERGUSON 25

is constitutionally required before a criminal defendant can
validly waive counsel and proceed pro se, stating:

Although a defendant need not himself have
the skill and experience of a lawyer in order
competently and intelligently to choose self-
representation, he should be made aware of
the dangers and disadvantages of self-
representation, so that the record will establish
that “he knows what he is doing and his
choice is made with eyes open.”

Id. at 835 (quoting Adams v. United States ex rel. McCann,
317 U.S. 269, 279 (1942)).

The Supreme Court’s decision in Faretta, however, is
silent on whether a defendant, who has validly waived
counsel before his first trial, is entitled to a second Faretta
hearing on remand. So is the Supreme Court’s decision in
Carnley v. Cochran, 369 U.S. 506 (1962), a case cited by
Rishor for the proposition that waiver of counsel cannot be
implied from the record. And where the holdings of the
Supreme Court regarding the issue presented on habeas
review are lacking, “it cannot be said that the state court
‘unreasonabl[y] appli[ed] clearly established Federal law.’”
Carey v. Musladin, 549 U.S. 70, 77 (2006) (quoting
§ 2254(d)(1)). The district court, therefore, erred by finding
that the United States Supreme Court had authored “clearly
established” law on this issue.

Nor can it be said that a “general standard” from the
Supreme Court’s Sixth Amendment case law clearly
establishes that Rishor was entitled to a second, formal
Faretta hearing. See Marshall v. Rodgers, 133 S. Ct. 1446,
26 RISHOR V. FERGUSON

1449 (2013) (“[T]he lack of a Supreme Court decision on
nearly identical facts does not by itself mean that there is no
clearly established federal law, since ‘a general standard’
from this Court’s cases can supply such law.”) (quoting
Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). To the
contrary, the bright-line rule suggested by Rishor, and
adopted by the district court, contravenes the Supreme
Court’s adoption of a “pragmatic approach to the waiver
question” in order to determine “the type of warnings and
procedures that should be required before a waiver of that
right will be recognized.” Tovar, 541 U.S. at 90 (citation
omitted). In fact, the Supreme Court has expressly declined
to “prescribe[] any formula or script to be read to a defendant
who states that he elects to proceed without counsel,” as the
information a defendant needs to make an intelligent waiver
depends on “a range of case-specific factors, including the
defendant’s education or sophistication, the complex or easily
grasped nature of the charge, and the stage of the
proceeding.” Id. at 88.

Viewing Rishor’s waiver argument through a “pragmatic”
lens, it is clear that fairminded jurists could disagree as to
whether Rishor’s original waiver of counsel remained intact
throughout his criminal prosecution. For instance, Rishor, on
remand, had specifically requested to be placed on Judge
Mura’s docket to request that attorney Thomas Fryer be
appointed as his standby counsel. At this initial hearing, the
prosecution informed Judge Mura that the parties were “here
this morning to reiterate [Rishor’s] request to proceed in a pro
se basis.” Rishor gave the court absolutely no indication that
this was not the case or that he no longer wished to proceed
pro se. Instead, Rishor proceeded to tell Judge Mura that he
wanted to get standby counsel appointed so that he could
have assistance filing motions from jail. Rishor’s renewed
 RISHOR V. FERGUSON 27

request for standby counsel was approved, and Rishor
personally drafted and filed the appropriate order appointing
Fryer as his standby counsel. Given Rishor’s valid waiver of
counsel before his first trial and his unwavering resolve to
proceed pro se on remand, we cannot say that the Washington
Supreme Court’s decision was “objectively unreasonable.”
See Renico v. Lett, 559 U.S. 766, 773 (2010) (finding that
AEDPA creates “a substantially higher threshold for
obtaining relief than de novo review”).

It is unnecessary for present purposes to determine what
rule the Sixth Amendment in fact establishes for post-remand
Faretta colloquies. All this case requires us to observe is
that, in light of Supreme Court precedent, fairminded jurists
could disagree as to whether Rishor’s constitutional rights
were violated on remand. Under AEDPA, this issue is one on
which we must defer to the considered judgment of our
colleagues on the Washington Supreme Court. Rishor’s
argument, accepted by the district court, does not pass muster
under AEDPA review.

B

The district court concluded that the state court violated
clearly established federal law by putting “the burden on
[Rishor] to demonstrate lack of waiver and [failing] to apply
a presumption against waiver.” The district court relied on
Michigan v. Harvey, 494 U.S. 344, 354 (1990), and Brewer
v. Williams, 430 U.S. 387, 407 (1977)—two cases involving
the right to counsel in police interrogations. Not only do
these cases involve a different factual scenario from this case,
but the district court also overlooked the Supreme Court’s
opinion in Iowa v. Tovar, 541 U.S. 77 (2004). There, the
Court held that “in a collateral attack on an uncounseled
28 RISHOR V. FERGUSON

conviction, it is the defendant’s burden to prove that he did
not competently and intelligently waive his right to the
assistance of counsel.” Id. at 92. Tovar illustrates that the
strict presumption against waiver of counsel does not last
indefinitely. At the very least, Tovar creates room for
disagreement as to whether Rishor bore the burden of proof
on the waiver of counsel issue.

Finally, the district court also suggested that the
Washington Supreme Court improperly required Rishor to
show that he was prejudiced by his invalid waiver of counsel.
But, as the district court noted and Rishor concedes on
appeal, the Supreme Court has never held that a court’s
failure to conduct a Faretta waiver is per se prejudicial.
Accordingly, we cannot say that the Washington Supreme
Court’s alternative holding—that Rishor was not prejudiced
by the court’s failure to secure a second waiver of
counsel—was contrary to, or an unreasonable application of,
clearly established federal law.

“If no Supreme Court precedent creates clearly
established federal law relating to the legal issue the habeas
petitioner raised in state court, the state court’s decision
cannot be contrary to or an unreasonable application of
clearly established federal law.” Brewer v. Hall, 378 F.3d
952, 955 (9th Cir. 2004). Therefore, the Washington
Supreme Court’s decision denying review of Rishor’s waiver
of counsel claim was not contrary to, or an unreasonable
application of, clearly established federal law as established
by the United States Supreme Court. The district court erred
in concluding otherwise.

Accordingly, we hold that the district court abused its
discretion by granting reconsideration and awarding Rishor
 RISHOR V. FERGUSON 29

habeas relief on his waiver of counsel claim. See Koon v.
United States, 518 U.S. 81, 100 (1996) (“The abuse-of-
discretion standard includes review to determine that the
discretion was not guided by erroneous legal conclusions.”);
see also Richard S. v. Dep’t of Developmental Servs. of Cal.,
317 F.3d 1080, 1086 (9th Cir. 2003) (district court abuses its
discretion when it bases its ruling on an “inaccurate view of
the law”).

V

Finally, we turn to Rishor’s claim that the State
improperly re-filed first degree assault charges on remand in
violation of Rishor’s rights under the Double Jeopardy
Clause. On remand, Rishor was initially charged with first
degree assault, the same conduct on which his first jury had
impliedly acquitted him after his first trial. Rishor, however,
was not ultimately convicted of that charge on remand. On
January 8, 2007, the State filed a second amended
information changing the charge to second degree assault.
That same day, Rishor pled guilty to that charge.

Although the district court failed to address Rishor’s
double jeopardy argument in its initial order denying Rishor
habeas relief, the district court granted Rishor’s motion for
reconsideration and granted habeas relief on this claim. The
district court first determined that Rishor had properly
exhausted this claim in the state courts. Citing Green v.
United States, 355 U.S. 184, 190 (1957), which held that a
jury’s verdict of acquittal bars a subsequent retrial on those
same offenses under the Double Jeopardy Clause, the district
court held that Rishor was prosecuted in violation of the
Double Jeopardy Clause when he was charged on remand
with first degree assault. The district court then concluded
30 RISHOR V. FERGUSON

that the state court’s decision on the double jeopardy issue
was “contrary to, or involved an unreasonable application of,”
clearly established Supreme Court precedent.

The district court went on to consider de novo whether
Rishor’s guilty plea to second degree assault prevented him
from seeking habeas relief based on a double jeopardy
violation that occurred before his plea. The district court
determined that Rishor’s guilty plea was invalid and did not
preclude habeas relief because Rishor had received bad
advice from his standby counsel and because “[t]he filing of
the first degree assault charge placed [him] at a grave
disadvantage in the plea bargaining process.”

We review the district court’s ruling on reconsideration
for an abuse of discretion. Allstate, 634 F.3d at 1111.

A

As an initial matter, we note that the parties contest
whether Rishor exhausted his double jeopardy claim in state
court. However, Rishor’s appeal does not require us to
decide this issue for the reasons below.

Before we can reach the merits of Rishor’s double
jeopardy argument, we must resolve whether Rishor’s guilty
plea to second degree assault forecloses his double jeopardy
claim. This is so because the Supreme Court has held,

[A] guilty plea represents a break in the chain
of events which has preceded it in the criminal
process. When a criminal defendant has
solemnly admitted in open court that he is in
fact guilty of the offense with which he is
 RISHOR V. FERGUSON 31

charged, he may not thereafter raise
independent claims relating to the deprivation
of constitutional rights that occurred prior to
the entry of the guilty plea.

Tollett v. Henderson, 411 U.S. 258, 267 (1973). Therefore,
“when the judgment of conviction upon a guilty plea has
become final and the offender seeks to reopen the proceeding,
the inquiry is ordinarily confined to whether the underlying
plea was both counseled and voluntary.” United States v.
Broce, 488 U.S. 563, 569 (1989). If the underlying guilty
plea was entered into knowingly and voluntarily, the guilty
plea forecloses a collateral attack on the underlying judgment.
Id.; see also Bradshaw v. Stumpf, 545 U.S. 175, 183 (2005)
(“A guilty plea operates as a waiver of important rights, and
is valid only if done voluntarily, knowingly, and intelligently,
‘with sufficient awareness of the relevant circumstances and
likely consequences.’”).

Whether Rishor’s guilty plea to second degree assault
forecloses his double jeopardy claim depends on whether it
was knowing and voluntary. See Broce, 488 U.S. at 574
(finding it to be “well settled” that a “voluntary and
intelligent plea of guilty” may not be collaterally attacked).
The Washington Supreme Court addressed this very issue in
response to Rishor’s argument that the State “coerced him
into pleading guilty” by initially charging him with first
degree assault on remand. Specifically, the Washington
Supreme Court held that “nothing in the record indicates that
the plea was anything but wholly voluntary. The plea offer
was generous, and Mr. Rishor understandably took advantage
of it rather than risk another trial.” We give this
determination deference under AEDPA. 28 U.S.C.
§ 2254(d)(2); see also Wood v. Allen, 558 U.S. 290, 301
32 RISHOR V. FERGUSON

(2010) (“[A] state-court factual determination is not
unreasonable merely because the federal habeas court would
have reached a different conclusion in the first instance.”).

Our review of the record confirms that the state court’s
decision was not objectively unreasonable. 28 U.S.C.
§ 2254(d)(2). In his habeas petition, Rishor asserts that he
was “never given notice, read, or arraigned on any charges
after remand.” However, on November 27, 2006, Rishor’s
standby counsel waived the right to a first appearance and
arraignment, and Rishor provides no evidence that his
standby counsel was acting without his authority. Then, at
his plea hearing, Rishor confirmed that he was pleading guilty
to second degree assault, with an 84-month sentence.
Rishor’s plea deal was generous, as it allowed him to avoid
a weapon enhancement that may have added 36 additional
months to his sentence. At his plea hearing, Rishor
acknowledged this fact and explained that he was pleading
guilty to avoid the weapon enhancement charge.

Rishor also stated that he was taking the plea deal to
avoid making his daughter come back for a second trial and
to avoid a trial altogether. Specifically, he stated,

That’s the only reason I’m taking the guilty
plea is because I don’t want to have to put my
daughter coming here and I have enough
problems and I’ll take this deal. I just wanted
to make sure I plead guilty to the 84 months
for the assault minus the weapon
enhancement, okay, fine to get around the
trial.
 RISHOR V. FERGUSON 33

And later, he stated: “Yes. I went through [the plea deal] with
Mr. Fryer now. I don’t want to bring my daughter back for
another trial. She just started school . . . . She’s going to be
a lawyer.” Finally, Rishor confirmed that he had reviewed
the plea deal with his standby counsel, that he understood the
rights he was giving up, that he was not being threatened or
coerced into pleading guilty, and that he was doing so “freely
and voluntarily.”

That the State initially re-charged Rishor with first degree
assault does not undermine the voluntariness of Rishor’s
guilty plea to second degree assault. Rishor never mentioned
that he was pleading to a lesser charge to avoid a first degree
assault conviction; instead, Rishor unequivocally explained
that he was pleading guilty to avoid a weapon enhancement
and because he wanted to avoid a trial altogether. Rishor
confirmed this fact less than a month later at his sentencing
on January 30, 2007 when he stated,

Your Honor, you’re familiar with the case that
happened. I took a guilty plea on the assault
two mostly because I didn’t want to bring my
daughter back from college and put her
through all of this was the main reason.

It was entirely reasonable for Rishor to
choose to avoid a second trial, especially
when a jury had already convicted him of the
charged offense plus an added weapon
enhancement. The record does not suggest
that Rishor’s decision to plead guilty was
motivated by a fear of a potential first degree
assault conviction. Rather, Rishor’s
admissions made upon entry of his guilty plea
34 RISHOR V. FERGUSON

show that he understood the nature of the
charges against him and that his guilty plea
was not driven in any part from the State’s
initial filing of first degree assault. The
record evidence is certainly sufficient for the
Washington Court to have concluded that
Rishor’s plea was knowing and voluntary.

Finally, Rishor’s standby counsel’s alleged failure to
advise Rishor that the State’s re-filing of first degree assault
potentially violated the Double Jeopardy Clause does not
render Rishor’s guilty plea invalid.11 There is no clearly
established constitutional right to effective assistance of
standby counsel; nor is there a clearly established right to
receive correct advice from standby counsel in the plea
bargaining process. See Locks v. Sumner, 703 F.2d 403,
407–08 (9th Cir. 1983) (holding that the right to advisory
counsel is “not of constitutional dimension”); United States
v. Kienenberger, 13 F.3d 1354, 1356 (9th Cir. 1994) (holding
that a district court has discretion in deciding whether to
appoint standby counsel).

Rishor had the opportunity to challenge the first amended
information and attempt to show the existence of a double
jeopardy violation. He did not. Morever, Rishor knowingly
assumed the risk that he would not understand the law well
enough to defend himself competently when he decided to
waive his right to counsel. Rishor was specifically warned

11
Standby counsel Fryer, submitted an affidavit that stated:
“presumptively the information I provided him as to the consequences of
being convicted of assault in the first degree in contrast to the
consequences of pleading guilty to assault in the second degree factored
into [Rishor’s] decision to plead guilty to the amended charge.”
 RISHOR V. FERGUSON 35

that he might fail to make a motion to dismiss the indictment
because he did not know the law. Judge Mura told Rishor,

There might be a good motion somewhere for
you to make, a legal motion to dismiss, let’s
say, or for some other relief, and if you don’t
know what the law is you won’t even know
what motions to make. Do you understand
that?

Accordingly, we cannot say that the state court’s
decision—finding that Rishor’s guilty plea was “wholly
voluntary”—resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence or in a decision that was contrary to, or involved an
unreasonable application of, clearly established federal law.
28 U.S.C. § 2254(d)(1), (2). Since we must defer to the
Washington Supreme Court’s decision that Rishor’s guilty
plea was valid, Rishor could not, under Tollett, attack his
conviction based on a constitutional violation that occurred
prior to his guilty plea. Therefore, double jeopardy was not
a valid basis for granting habeas relief.

B

In determining whether Rishor was entitled to collateral
relief based on his double jeopardy argument, the district
court was required to first decide whether Rishor’s guilty plea
was knowing and voluntary. See Broce, 488 U.S. at 574. The
district court erred by skipping this initial step and first
addressing the merits of Rishor’s double jeopardy claim.
After finding that the prosecution violated double jeopardy
principles on remand, the district court proceeded to conduct
a de novo review as to whether Rishor’s guilty plea was valid
36 RISHOR V. FERGUSON

and precluded his double jeopardy argument. The district
court legally erred by failing to give AEDPA deference to the
Washington state court’s determination that Rishor’s guilty
plea was knowing and voluntary.

In sum, the district court erred by granting Rishor habeas
relief on his double jeopardy claim. We therefore reverse the
district court on this issue as well and hold that Rishor is not
entitled to habeas relief on his double jeopardy claim.

VI

The Washington Supreme Court’s decision that Rishor
was not entitled to habeas relief on his waiver of counsel and
double jeopardy claims was neither contrary to, nor an
unreasonable application of, clearly established federal law as
determined by the United States Supreme Court. Due to its
legal errors, the district court abused its discretion by
concluding otherwise. Rishor’s motion for reconsideration
should have been denied.

REVERSED, VACATED, and REMANDED with
instructions to reinstate the judgment denying habeas
relief.