NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROBERT L. ROSE, 

Petitioner-Appellant, 

 v. 

LEROY KIRKEGARD and ATTORNEY 

GENERAL FOR THE STATE OF 

MONTANA, 

Respondents-Appellees.

No. 16-35586 

D.C. No. 

9:13-cv-00156-DWM-JCL 

MEMORANDUM*

Appeal from the United States District Court

for the District of Montana

Donald W. Molloy, District Judge, Presiding

Argued and Submitted April 13, 2018

Seattle, Washington

Before: HAWKINS and McKEOWN, Circuit Judges, and TEILBORG,** District 

Judge.

Robert L. Rose appeals the nature of the remedy ordered by the federal district 

court after it granted his petition for a writ of habeas corpus under 28 U.S.C. § 2254. 

 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The Honorable James A. Teilborg, United States District Judge for the 

District of Arizona, sitting by designation.

FILED

APR 24 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

Because the parties are familiar with the facts, we do not recite them here. We have 

jurisdiction under 28 U.S.C. §§ 1291, 2255(d), and we affirm. 

The district court did not abuse its discretion. See Loher v. Thomas, 825 F.3d 

1103, 1111 (9th Cir. 2016) (stating the applicable standard of review). It ordered 

the remedy articulated by the Supreme Court for circumstances where “inadequate 

assistance of counsel cause[s] nonacceptance of a plea offer and further proceedings 

le[a]d to a less favorable outcome.” Lafler v. Cooper, 566 U.S. 156, 160 (2012). In 

such circumstances, the “proper exercise of discretion to remedy the constitutional 

injury may be to require the prosecution to reoffer the plea proposal.” Id. at 171. 

“Once this has occurred, the [state trial] judge can then exercise discretion in 

deciding whether to vacate the conviction from trial and accept the plea or leave the 

conviction undisturbed.” Id.

Here, the district court determined that Rose’s counsel was constitutionally 

ineffective in failing to inform him of a favorable plea offer. The district court 

required the government to “reoffer the equivalent terms of the plea agreement 

proposed on May 21, 2003,” and directed that the “state trial court can then exercise 

discretion in deciding whether to vacate the conviction from trial and accept the plea 

or leave the conviction undisturbed.” This remedy was in accord with Lafler, 566 

U.S. at 171-75, and within the district court’s “broad discretion in conditioning a 

judgment granting habeas relief.” Hilton v. Braunskill, 481 U.S. 770, 775 (1987).
3 

We do not offer an opinion whether Rose has other avenues to challenge the

subsequent actions taken by the Montana courts pursuant to the district court’s 

ordered remedy, as that issue is not before us. 

Finally, we reject Rose’s uncertified claim that he was precluded from 

conferring with counsel for as long as he wanted during an overnight recess at his 

trial. See Perry v. Leeke, 488 U.S. 272 (1989). The record does not support Rose’s

claim, and Rose cannot make a substantial showing that he was denied a 

constitutional right as required to expand the certificate of appealability. Robertson

v. Pichon, 849 F.3d 1173, 1187 (2017); 28 U.S.C. § 2253(c)(2).

AFFIRMED.