concurring in part and dissenting in part.
While I agree that the writ of habeas corpus was properly issued in this case, and find no fault with the remedy the district court has fashioned to rectify the constitutional violation which has occurred, I cannot agree with the district court’s determination that a presumption of vindictiveness should attach to the state’s twenty-year plea bargain offer. There is not the slightest indication in this record that the state’s offer to the defendant to recommend that the trial court accept a plea of guilty to one count of aggravated robbery with a maximum sentence of twenty years’ confinement is vindictive action taken as a means to punish the defendant for successfully appealing his conviction and seventy-year sentence.
The unique facts of this case warrant the unique relief we have approved — a hearing at which the state is required to show cause why its former offer of a two-year maximum sentence should not be reinstated. But nothing in this court’s opinion or the district court’s suggests a valid reason for further burdening the state’s position by imposing a judge-made presumption, albeit rebuttable, that the state’s twenty-year plea offer is vindictive. The controlling Supreme Court authorities for determining whether a presumption of vindictiveness should be judicially imposed make clear that “the Due Process Clause is not offended by all possibilities of increased punishment ... but only by those that pose a realistic likelihood of ‘vindictiveness.’” United States v. Goodwin, 457 U.S. 368, 384, 102 S.Ct. 2485, 2494, 73 L.Ed.2d 74 (1982); Blackledge v. Perry, 417 U.S. 21, 27, 94 S.Ct. 2098, 2102, 40 L.Ed.2d 628 (1974). There is no such realistic likelihood in this case. The state originally had a compelling reason for making the inordinately lenient offer to Turner of a two-year plea: the concern that the prosecution would fail because Mrs. Hudson, one of the kidnapping victims, was “apprehensive about testifying again at the Turner trial,” since she had already been through the unpleasant experience of testifying against Turner’s co-defendant, Passarella. Apparently Mrs. Hudson’s family also shared her reluctance to face the ordeal of another trial. Through no fault of the state of Tennessee, that early lenient offer was rejected by the defendant and the state was required to proceed to trial, risking the possibility of losing the case entirely if Mrs. Hudson’s “apprehensiveness” hardened into non-cooperation. As it turned out, it did not. She testified against Turner, and he was convicted of two counts of kidnapping and one count of murder in the first-degree.
The convictions and the seventy-year sentence that resulted have now been set aside. The defendant, save for the unconstitutional ineptness of his retained counsel, would ordinarily be entitled to no more than a trial with the prospects of acquittal and freedom on the one hand, or a conviction and confinement for any number of years up to life on the other. The state of Tennessee, as prosecutor, has done nothing improper to bring about that state of affairs. The compelling motivation it once had to “give away the store,” in the form of a two-year plea agreement, no longer exists, however. Nevertheless, the state has offered to allow Turner to plead guilty to a single count of aggravated kidnapping rather than the two counts of aggravated kidnapping and one of murder in the first degree, and to recommend a sentence of not more than twenty years. Whether Tennessee should be permitted to rescind its previous two-year plea offer in favor of its present twenty-year offer is a matter to be resolved by the state trial judge. No reason has been shown, however, to justify imposing upon the proceedings a judicial determination that the offer the state pres*1210ently has on the table reflects presumptively vindictive retaliation against the accused for proving that he was the victim of the unconstitutional ineffectiveness of his retained counsel.
I would return the proceedings to the trial court for a hearing requiring the state of Tennessee to show cause why the original two-year plea offer should not be reinstated, but without the application of any presumption in the matter because it is evident from the record before us that the state’s twenty-year plea offer does not “pose a realistic likelihood of vindictiveness.” Goodwin, supra; Blackledge, supra.