Michael Wayne Riggs v. J.W. Fairman, Jr., Warden

399 F.3d 1179 Michael Wayne RIGGS, Petitioner-Appellant, v. J.W. FAIRMAN, Jr., Warden, Respondent-Appellee. No. 02-55185. United States Court of Appeals, Ninth Circuit. Argued January 5, 2004. Submitted March 16, 2004. Filed March 7, 2005. Donald M. Falk, Mayer Brown Rowe & Maw, Palo Alto, CA, for the appellant. Kyle Niki Shaffer, Deputy Attorney General, San Diego, CA, for the appellees. Appeal from the United States District Court for the Central District of California; Consuelo B. Marshall, Chief Judge, Presiding. D.C. No. CV-00-04266-CBM(E). Before TROTT, RAWLINSON, and BEA, Circuit Judges. Opinion by Judge RAWLINSON; Dissent by Judge BEA RAWLINSON, Circuit Judge. 1 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' conviction and sentence and ordered the…

Opinion by Judge RAWLINSON; Dissent by Judge BEA.

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’ conviction 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 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 separate “strike” under California’s three strikes law. 1 See People v. Campos, 45 Cal.Rptr.2d 706 , 709…

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. Morrison, 477 U.S. 365, 379 , 106 S.Ct. 2574 , 91 L.Ed.2d 305 (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.

What Riggs has won is a “famous victory”: 2 He has won his writ of habeas corpus; everyone agrees he received ineffective assistance of counsel and that had he received competent 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,…