NOT FOR PUBLICATION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, Uni ted States District Judge for the District of Arizona, sitting by designation. 

# FILED

APR 24 2018

MOLLY C. DWYER, CLER K U.S. COURT OF APPEAL S2

Because the parties are familiar with the fac ts, we do not recite them here. We have
juri sdiction under 28 U.S.C. §§ 1291, 2255(d) , and w e 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)

. I t 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, t he district court determined that Rose’s counsel was constitutionally
ineffective in failing to inform him of a favorable plea offer. T he 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 t o 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.

Fi nally, 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 can not 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.