Maxwell Hoffman v. Arvon J. Arave, Warden, Idaho Maximum Security Institution, Department of Correction, State of Idaho

481 F.3d 686 Maxwell HOFFMAN, Petitioner-Appellant, v. Arvon J. ARAVE, Warden, Idaho Maximum Security Institution, Department of Correction, State of Idaho, Respondent-Appellee. No. 02-99004. United States Court of Appeals, Ninth Circuit. March 6, 2007. Ellison M. Matthews, Esq., Matthews Law Offices, Boise, ID, Joan M. Fisher, Esq., Federal Defenders of Eastern Washington & Idaho, Moscow, ID, for Petitioner-Appellant. L. Lamont Anderson, Esq., AGID-Office of the Idaho Attorney General, Boise, ID, for Respondent-Appellee. Before HARRY PREGERSON, WILLIAM A. FLETCHER, and RONALD M. GOULD, Circuit Judges. ORDER 1 The panel, as constituted above, have voted unanimously to deny both the petition for rehearing and the petition for rehearing en banc. A judge of the court requested a vote on whether to rehear the case en banc, but the request failed to receive a majority of votes of the active judges in favor of en banc rehearing. The petition for rehearing and the petition for rehearing en banc are denied. 2 BEA, Circuit Judge, with whom KOZINSKI, O'SCANNLAIN, KLEINFELD, TALLMAN, BYBEE and CALLAHAN, Circuit Judges, join, dissenting from the denial of rehearing en banc. 3 The panel's…

ORDER

The panel, as constituted above, have voted unanimously to deny both the petition for rehearing and the petition for rehearing en banc. A judge of the court requested a vote on whether to rehear the case en banc, but the request failed to receive a majority of votes of the active judges in favor of en banc rehearing. The petition for rehearing and the petition for rehearing en banc are denied.

with whom

The panel’s decision has effectively written out of the law the requirement that prejudice be pleaded and proved to meet the test for ineffective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 687 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984); Turner v. Calderon, 281 F.3d 851, 879 (9th Cir.2002). In fact, Hoffman alleged only that had his ineffective counsel made Hoffman competent, Hoffman would then have been able to assess his position and then decide whether to take the plea offer. 1 He did not allege that if *687 competent and if counsel had advised him to take the plea offer, he would have done so.

Further, in what may be a new high in self-effacing candor, the panel holds that it is ineffective assistance of counsel to rely on Ninth Circuit precedent with respect of federal constitutional law applicable in states located in this Circuit. Therefore, I respectfully dissent from the order denying rehearing en banc.

Hoffman and an associate, Ron Wages, killed Denise Williams, a police informant, after Williams made a controlled drug buy which resulted in the arrest of Richard Holmes. State v. Hoffman, 123 Idaho 638 , 851 P.2d 934, 935-36 (1993). On…