FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHAEL WAYNE RIGGS,  No. 02-55185

Petitioner-Appellant, D.C. No.

v.  CV-00-04266-

CBM(E) J. W. FAIRMAN, JR., Warden,

Respondent-Appellee. OPINION 

Appeal from the United States District Court

for the Central District of California

Consuelo B. Marshall, Chief Judge, Presiding

Argued January 5, 2004

Submitted March 16, 2004

Pasadena, California

Filed March 7, 2005

Before: Stephen S. Trott, Johnnie B. Rawlinson, and

Carlos T. Bea, Circuit Judges.

Opinion by Judge Rawlinson;

Dissent by Judge Bea

2791
COUNSEL

Donald M. Falk, Mayer Brown Rowe & Maw, Palo Alto, California, for the appellant. 

Kyle Niki Shaffer, Deputy Attorney General, San Diego, California, for the appellees. 

OPINION

RAWLINSON, Circuit Judge: 

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

2794 RIGGS v. FAIRMAN
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 (Cal.App. 1995). California’s three strikes law imposes a 25-year-to-life sentence on

defendants previously convicted of two or more “serious” or

“violent” felonies. Cal. Penal Code §§ 667(e)(2)(A),

1170.12(c)(2)(A). 

Before his preliminary hearing, Riggs, the deputy district

attorney, and Riggs’ defense counsel engaged in plea negotiations. None of the parties to the negotiations understood that

Riggs faced a potential life prison term under California’s

three strikes law. The prosecutor was unaware that she could

charge four “strikes” for four robbery charges tried in a single

proceeding. Riggs’ counsel had limited knowledge of Riggs’

criminal history due to her failure to independently investigate

Riggs’ prior criminal record. Based on her limited knowledge,

Riggs’ counsel advised Riggs that his maximum exposure on

the petty theft charge was only nine years. Riggs knew his

own criminal history, but did not understand that California

law permitted charging multiple counts arising in a single

prior case as separate strikes. 

During the course of plea negotiations, the state offered

Riggs a deal that would permit him to plead guilty in return

for a six-year sentence. This offer was later revised to include

a five-year sentence. Riggs’ counsel advised him that he could

do better than the five-year offer and Riggs rejected the offer.

However, no better deal was offered. Riggs was eventually

convicted of felony petty theft and sentenced to 25-years-tolife in prison. 

1Riggs’ prior robbery convictions converted his otherwise misdemeanor

petty theft offense into the felony of petty theft with a prior. See Cal. Penal

Code § 666. 

RIGGS v. FAIRMAN 2795
II.

STANDARDS OF REVIEW

We review de novo the district court’s ruling on a writ of

habeas corpus. Van Lynn v. Farmon, 347 F.3d 735, 738 (9th

Cir. 2003). We review the district court’s ruling on the appropriate remedy for abuse of discretion. Nunes v. Mueller, 350

F.3d 1045, 1056-57 (9th Cir. 2003).

III.

DISCUSSION

A. General Legal Standard

Because Riggs filed his habeas petition after the enactment

of the Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA), his appeal is governed by the rules of that Act. See

Gill v. Ayers, 342 F.3d 911, 917 (9th Cir. 2003). Under

AEDPA, we may grant the petition only if the state court’s

denial of relief: 

(1) resulted in a decision that was either “contrary

to,” or was an “unreasonable application” of “clearly

established federal law” as set forth by the United

States Supreme Court; or 

(2) if that decision was based on an “unreasonable

determination” of the facts in light of the evidence

presented in the State court proceeding. 

28 U.S.C. § 2254(d)(1); Tracey v. Palmateer, 341 F.3d 1037,

1042 (9th Cir. 2003). 

[1] To succeed on his ineffective assistance of counsel

claim, Riggs must show both that his counsel’s performance

was constitutionally deficient and that he was prejudiced by

2796 RIGGS v. FAIRMAN
his counsel’s errors. Strickland v. Washington, 466 U.S. 668,

687 (1984).2 To warrant relief under Strickland, defense counsel’s performance must have fallen below an “objective standard of reasonableness.” Id. at 688. Riggs must show a

“reasonable probability” that, but for his counsel’s ineffectiveness, the result of his proceedings would have differed. Id.

at 694. “A reasonable probability is a probability sufficient to

undermine confidence in the outcome.” Id. The Supreme

Court’s two-part standard for analyzing claims of ineffective

assistance of counsel was clearly established law as of the

time of the plea negotiations.3

In a habeas appeal, we review the last reasoned decision in

the state court system. Robinson v. Ignacio, 360 F.3d 1044,

1055 (9th Cir. 2004). In this case, Riggs filed a direct appeal

of his conviction. The California Court of Appeal affirmed the

judgment of conviction. However, the direct appeal did not

include the ineffective assistance of counsel claim now before

us. Riggs subsequently filed a habeas petition in the California Supreme Court asserting, among other causes, an ineffective assistance of counsel claim. 

The California Supreme Court summarily denied Riggs’

habeas petition. Ordinarily, we look through the California

Supreme Court’s summary denial of the ineffective assistance

claim to the last reasoned state court decision that did address

the claim. See Bailey v. Rae, 339 F.3d 1107, 1112 (9th Cir.

2003). However, the only other state court decision addressing Riggs’ conviction was the Court of Appeal decision

rejecting Riggs’ direct appeal. As noted above, the direct

2

“It is past question that the rule set forth in Strickland qualifies as

clearly established Federal law, as determined by the Supreme Court of

the United States.” Williams v. Taylor, 529 U.S. 362, 391 (2000) (internal

quotation marks omitted). 

3

It is also clear that the Strickland analysis applies to claims of ineffective assistance of counsel involving counsel’s advice offered during the

plea bargain process. See Hill v. Lockhart, 474 U.S. 52, 58 (1985). 

RIGGS v. FAIRMAN 2797
appeal did not raise the ineffective assistance of counsel

claim. As a result, there is no state court determination

addressing Riggs’ ineffective assistance of counsel claim. In

such a circumstance, we undertake an “independent review of

the record.” See Greene v. Lambert, 288 F.3d 1081, 1089 (9th

Cir. 2002). 

B. Deficient performance

[2] The performance prong of the ineffective assistance of

counsel analysis turns on whether Riggs’ attorney’s failure to

learn that Riggs was exposed to a potential 25-year-to-life

sentence fell below an objective standard of reasonableness.

Defense “counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular

investigations unnecessary.” Id. at 691. The investigatory

omissions made by Riggs’ attorney were numerous. Among

the most egregious omissions were counsel’s failure to investigate Riggs’ prior robbery convictions, failure to obtain

Riggs’ rap sheet, and failure to seek sufficient information

from Riggs about his prior robbery convictions. 

[3] Informed only by her limited knowledge of his criminal

record, Riggs’ counsel advised him that his maximum exposure under California law was only nine years and that he

should therefore reject the state’s offer of a five-year prison

term. However, Riggs’ actual exposure under California’s

three strikes law was 25-years-to-life. Defense counsel’s

advice to Riggs was not only erroneous, but egregious, considering the discrepancy between the two punishments. See

Iaea v. Sunn, 800 F.2d 861, 865 (9th Cir. 1986) (“Though a

mere inaccurate prediction, standing alone, would not constitute ineffective assistance, the gross mischaracterization of the

likely outcome presented in this case, combined with the erroneous advice on the possible effects of going to trial, falls

below the level of competence required of defense attorneys.”) (citations omitted). 

2798 RIGGS v. FAIRMAN
[4] Simply stated, Riggs’ counsel had a duty to investigate

whether California’s three strikes law would be applicable to

Riggs. Riggs’ counsel unjustifiably failed to discover such

information in this case. Her omission fell below an objective

standard of reasonableness. See Iaea, 800 F.2d at 865.

C. Prejudice

Riggs must also “affirmatively prove prejudice,” Strickland, 466 U.S. at 693, by demonstrating “that there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.” Id. at 694. This burden represents a fairly low threshold.

See Sanders v. Ratelle, 21 F.3d 1446, 1461 (9th Cir. 1994)

(stating that a “reasonable probability” is actually a lower

standard than preponderance of the evidence). Riggs has sufficiently demonstrated that counsel’s ineffectiveness prejudiced him. Riggs credibly testified that he would have

accepted the five-year plea sentence offered by the prosecution if he had known that his maximum exposure was a sentence of 25-years-to-life. The significant discrepancy between

a sentence of five years and a sentence of 25-years-to-life supports Riggs’ testimony. Such a discrepancy between the two

sentences would compel any reasonable person to take the

deal offered by the prosecution. In addition, the record indicates that the state’s case against Riggs was strong. Therefore,

it does not stretch credulity to conclude that Riggs would have

preferred a certain five-year prison term to a trial with the

possibility of a sentence of 25-years-to-life if convicted. 

[5] The record also indicates that once Riggs became aware

of the application of the three strikes law to his case, he

attempted to get the sentencing offer reinstated. Despite

Riggs’ efforts, the prosecution declined to reinstate the offer.

Riggs’ testimony and actions, along with the large disparity

between the respective sentences persuades us that there is a

“reasonable probability” that the outcome of the criminal proceeding against Riggs would have differed had he received

RIGGS v. FAIRMAN 2799
competent legal advice. See Mask v. McGinnis, 233 F.3d 132,

142 (2d Cir. 2000) (holding that the prejudice requirement

was satisfied when defendant stated his willingness to accept

a reasonable plea bargain and a great disparity existed

between the sentence exposure at trial and in the plea bargain). We agree with the district court that Riggs has shown

prejudice. 

D. Remedy For Ineffective Assistance of Counsel

Upon concluding that Riggs was denied effective assistance

of counsel, the district court vacated Riggs’ jury conviction

and three-strikes sentence for petty theft with a prior. The district court ordered the parties to return to the pre-error stage

of the criminal proceeding. The district court determined that

the appropriate pre-error stage of the criminal proceeding was

the plea bargain stage. Despite Riggs’ urging, the district

court declined to order the government to reinstate the fiveyear plea offer. Riggs argues on appeal that specific performance of the state’s five-year plea offer is the only appropriate remedy in this case. 

[6] Once a determination has been made that habeas relief

is warranted, the district court has considerable discretion in

fashioning a remedy “tailored to the injury suffered from the

constitutional violation . . .” United States v. Morrison, 449

U.S. 361, 364 (1981). The Supreme Court has instructed that

“[f]ederal habeas corpus practice, as reflected by the decisions

of this Court, indicates that a court has broad discretion in

conditioning a judgment granting habeas relief. Federal courts

are authorized, under 28 U.S.C. § 2243, to dispose of habeas

corpus matters ‘as law and justice require.’ ” Hilton v. Braunskill, 481 U.S. 770, 775 (1987) (internal quotation marks

omitted). Therefore, unless the district court abused its discretion in fashioning a remedy, that remedy must stand. Nunes,

350 F.3d 1056-57. 

2800 RIGGS v. FAIRMAN
[7] When ineffective assistance of counsel has deprived a

defendant of a plea bargain, a court may choose to vacate the

conviction and return the parties to the plea bargaining stage.

See United States v. Gordon, 156 F.3d 376, 381-82 (2d Cir.

1998). A court may also order the government to reinstate its

original plea offer to the defendant or release the defendant

within a reasonable amount of time. See Nunes, 350 F.3d at

1056-57 (9th Cir. 2003).4 In deciding the proper remedy, a

court must consider the unique facts and circumstances of the

particular case. See Morrison, 449 U.S. at 364. 

[8] As the district court noted, neither of the options

described above offers a perfect solution. Riggs v. Fairman,

178 F.Supp.2d 1141, 1152-53 (C.D. Cal. 2001). If the prosecution were ordered to reinstate its original plea offer to

Riggs, the government would be forced to repeat the same

mistake it made years ago. On the other hand, returning the

parties to the negotiation stage does not restore the lost plea

opportunity. Weighing both of these considerations, the district court held that “[t]he least inappropriate remedy, therefore, would appear to be the vacation of the conviction and

the return of the parties to the pre-error stage.” Id. at 1154.

The district court aptly noted that as a matter of policy, requiring the government to re-offer Riggs the five-year deal is

troubling in light of the fact that under California law, plea

bargains are not binding on the parties until “a defendant

pleads guilty or otherwise detrimentally relies on that bargain.” People v. Rhoden, 75 Cal.App.4th 1346, 1354 (1999).

Therefore, even if Riggs had accepted the five-year plea offer,

the government may have realized its mistake prior to the

court’s acceptance of the plea agreement. Upon realizing its

4We note that in Nunes, we were called upon to decide whether the district court abused its discretion when it ordered specific performance of

the original plea offer. The fact that we affirmed the remedy fashioned by

the district court in that case reinforces the discretion that lies with the district court, and does not suggest that a particular remedy is mandated in

any given case. 

RIGGS v. FAIRMAN 2801
mistake, the government would have had the right to unilaterally invalidate the plea agreement. Because the district court

properly considered the effect of California law and weighed

the competing considerations raised by the parties, we cannot

say that the district court abused its discretion in returning the

parties to the plea bargain stage of the proceedings. 

IV.

CONCLUSION 

[9] We find no abuse of discretion by the district court in

fashioning the remedy in this case. It is undisputed that the

plea offer to Riggs was a result of a misunderstanding of California’s three strikes law by all involved. Absent the fundamental misunderstanding that pervaded the plea negotiations,

Riggs never would have been offered a five-year plea sentence. Riggs missed the opportunity to exploit the government’s misstep and seize a plea offer that never should have

been extended to him. Under such circumstances, we cannot

conclude that the remedy of specific performance of the government’s plea offer was the only appropriate remedy. 

AFFIRMED. 

BEA, Circuit Judge, 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 (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.

1The sole issue raised on appeal is the remedy fashioned by the district

court. The state did not cross-appeal the district court’s ruling that Riggs

2802 RIGGS v. FAIRMAN
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 fiveyear 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, the majority opinion

assumes that had the prosecutor correctly read the law, she

would not have persisted in the five-year offer. This assumption is belied by the district court’s finding that Riggs was

actually prejudiced by the ineffective assistance of counsel;

that had he received competent counsel the outcome would

have been different. Such a finding necessarily implies the

district attorney would not have withdrawn her five-year

offer. If the district court had found the prosecutor would

have withdrawn the five-year offer, Riggs could not be found

to have been prejudiced by his ineffective attorney. 

had ineffective assistance of counsel at the plea bargaining stage. Therefore, I shall not comment on the majority’s opinion which precedes part

III.D. While it is informative and accurate, such earlier portion of the

opinion is background, rather than determinative. 

2

“And everybody praised the Duke 

Who this great fight did win.” 

“But what good came of it at last?” 

Quoth little Peterkin. 

“Why, that I cannot tell,” said he, 

“But ‘twas a famous victory.” 

Robert Southey, The Battle of Blenheim, in HISTORICAL POEMS AND

BALLADS, (Rupert S. Holland, ed., George W. Jacobs & Co) (1912). 

RIGGS v. FAIRMAN 2803
Second, the two reasons given by the majority opinion for

departing from the traditional remedy of reinstating the plea

offer are mistaken interpretations of criminal and constitutional law. Our precedent is clear that a prosecutor cannot

withdraw a plea bargain offer on remand where the accused

had ineffective assistance of counsel at the time the offer was

tendered and refused. Neither is the prosecutor entitled to

have any errors of its own erased by a Sixth Amendment

which grants rights only to the accused.

I

To say the case against Riggs was strong is an understatement. On October 13, 1995, Riggs shoplifted a bottle of vitamins in what the district court described as “a petty theft

motivated by homelessness and hunger.” Riggs v. Fairman,

178 F. Supp. 2d 1141, 1143 (C.D. Cal. 2001). When caught,

Riggs “apologized emphatically” and told the store employees

that if they would give him a job “he’d scrub floors or clean

the place” to pay for the vitamins. Id. at 1143-45. 

Riggs was charged with petty theft. Had this been Riggs’

first offense, it would have been a misdemeanor with a maximum sentence of six months, or a fine. CAL. PENAL CODE

§ 490. However, Riggs had previously been convicted of four

counts of robbery in 1988. At first, one might think the previous conviction would turn this misdemeanor offense into a

felony. See CAL. PENAL CODE § 666. As a “second strike”, the

prosecution said it could increase Riggs’ possible penalty to

nine years. But under California’s three strikes law, even

though Riggs’ conviction for four counts of robbery were

charged in a single complaint, each count constituted a separate “strike.” See CAL. PENAL CODE §§ 667; People v. Fuhrman, 941 P.2d 1189, 1195-96 (1997). Thus, Riggs’ previous

conviction turned this petty theft into his “third strike” with

a mandatory sentence of 25 years to life. 

As the district court found, the “evidence of Petitioner’s

guilt was overwhelming.” His theft had been seen by multiple

2804 RIGGS v. FAIRMAN
witnesses, to whom he had confessed to the crime. Riggs, 178

F. Supp. 2d at 1143, 1149. At trial, defense counsel did not

even present a closing argument. If remanded for a new trial,

there is absolutely no reason to think Riggs will not be convicted again and receive another mandatory sentence of 25

years to life, especially since the parties have been unable to

agree to a disposition during mediation.

II

A. The Remedy Required by Law Is to Allow Riggs to

Remain Free Because He Has Served More Time Than

He Would Have Under the Plea Offer

The issue we decide today is whether the district court’s

remedy places Riggs in the position in which he would have

been, had he received effective assistance of counsel during

plea negotiations. The clear answer is “No.” 

A defendant’s right to effective assistance of counsel is

guaranteed by the Sixth and Fourteenth Amendments to the

United States Constitution. Kimmelman v. Morrison, 477 U.S.

365, 379 (1986); Gideon v. Wainwright, 372 U.S. 335, 344

(1963). 

We have articulated the remedy for ineffective assistance of

counsel during the plea bargaining stage as follows:

Since the remedy for counsel’s ineffective assistance

should put the defendant back in the position he

would have been in if the Sixth Amendment violation had not occurred, in certain circumstances granting a new trial may not be the appropriate remedy.

. . . Thus, where, as here, the defendant was deprived

of the opportunity to accept a plea offer, putting him

in the position he was in prior to the Sixth Amendment violation normally will involve reinstating the

original offer. 

RIGGS v. FAIRMAN 2805
United States v. Blaylock, 20 F.3d 1458, 1468 (9th Cir. 1994)

(emphasis added). 

Blaylock was convicted of being a felon in possession of a

firearm. He filed a motion pursuant to 28 U.S.C. § 2255 to

vacate, set aside, or correct his sentence; his motion was

denied. He appealed both his conviction and the denial of his

Section 2255 motion, and the appeals were consolidated. He

argued, in relevant part, that he had ineffective assistance of

counsel at the plea bargaining stage. 

Blaylock claimed his attorney did not tell him about a plea

offer until after it expired and that had he known about the

offer in time, he would have accepted it. Id. at 1467. We held

it was an abuse of discretion to deny Blaylock an evidentiary

hearing on his claim of ineffective assistance of counsel; that

if Blaylock proved on remand he would have accepted the

plea offer, the correct remedy would be to reinstate the plea

offer, not to give him a new trial. Id. at 1465, 1468-69. 

There is only one recognized exception to Blaylock’s general rule that a plea offer should be reinstated where there is

ineffective assistance of counsel at the plea bargaining stage:

“The government may of course, in proper cases, seek to

demonstrate that intervening circumstances have so changed

the factual premises of its original offer that, with just cause,

it would have modified or withdrawn its offer prior to its

expiration date.” Blaylock, 20 F.3d at 1468-69 (emphasis

added). The burden to prove such changed factual premises

rests on the prosecution. Id. Blaylock does not say a change

in the state’s understanding of the law permits the state to

withdraw its plea offer retroactively. 

There were no changes in the facts in our case. The prosecution presented absolutely no evidence of changed factual

circumstances after the plea offer—such as a defendant refusing to cooperate after agreeing to testify against a codefendant, the defendant attacking a prison guard, or the dis2806 RIGGS v. FAIRMAN
covery of new evidence in the case. Even assuming changes

in the facts, the state has not presented any evidence it would

have withdrawn the offer prior to the original expiration date

had it known Riggs could have been charged under the three

strikes law. 

As noted, the district court found Riggs would have taken

the five-year plea offer if he had received effective assistance

of counsel, Riggs, 178 F. Supp. 2d at 1149, and that finding

has not been appealed. Thus, as the district court itself

acknowledged, its remedy of remanding for a new trial “does

not restore the lost plea opportunity of which petitioner was

deprived.” Id. at 1152. Rather, the district court’s remedy

returns the parties to the point in time before the offer had

been made, not the status quo when the ineffective assistance

of counsel to Riggs occurred—when the offer was open.3 As

the district court stated, “The Court also believes the forced

restoration of the plea offer would be inappropriate. The onestrike charging decision, and the plea offer, resulted from a

prosecutor’s temporary misunderstanding of California law.”

4

Riggs, 178 F. Supp. 2d at 1153. In short, by returning the case

to a point before the prosecutor had committed a “mistake”,

the district court incorrectly sought to protect the state from

its own ineffective counsel, rather than focus solely on the

text and purpose of the Sixth Amendment—protecting the

right to effective counsel of the person accused of a crime. 

3Although the district court’s decision states that it is returning the parties to the pre-error stage of the proceedings and the parties will be free

to negotiate a plea bargain or not, the parties have been unable to negotiate

a settlement in the district court or this court, and are unlikely to do so

upon remand. The prosecution knows it can obtain a conviction, the prosecution’s office has a policy of not negotiating Third Strike cases after the

preliminary hearing, and Riggs has nothing with which to bargain. Therefore, in reality, the parties will find themselves back in the position they

were in after the offer had expired and the Information had been amended,

rather than at the time the offer was made. 

4

See pages 2806-2808, infra, for a discussion of why there is no evidence the prosecutor was operating under a “misunderstanding”, but there

is much evidence of no misunderstanding at all. 

RIGGS v. FAIRMAN 2807
Our case is also similar to Nunes v. Mueller, 350 F.3d 1045

(9th Cir. 2003). In Nunes, the prosecutor offered a plea bargain of 11 years, with credit for time actually served, if Nunes

would plead guilty to voluntary manslaughter. Id. Defense

counsel incorrectly told Nunes the offer was for 22 years, not

11. Id. Nunes testified he asked his attorney to clarify the

offer, but defense counsel simply rejected the offer. Id. Nunes

was convicted of second degree murder and sentenced to 25

years to life, with a two-year enhancement. 

The California Court of Appeal rejected Nunes’ claim that

he had ineffective assistance of counsel in the plea bargaining

stage, holding he had not made out a prima facie claim he

would have accepted the plea bargain but for counsel’s deficient performance. Id. at 1050. 

Nunes then filed a petition for a writ of habeas corpus

under 28 U.S.C. § 2254 in federal court. The district court

held an evidentiary hearing and concluded Nunes did have

ineffective assistance of counsel during the plea bargaining

stage and he would have pleaded guilty to accept the 11-year

offer. The court vacated Nunes’ conviction and ordered the

state to reinstate its 11-year plea offer. Id. 

On appeal, we affirmed the district court’s grant of the

habeas writ, and remanded with instructions for the district

court to “modify the writ to order Nunes’ release (that is, after

all, the classic relief afforded by the writ) within a reasonable

time unless the state provides the identical offer it made to

Nunes earlier.” Id. at 1056. 

The remedy we ordered on remand would obviously have

been meaningless if the state could revoke its offer after

remand. Necessarily implied in our remand order was the condition that had the state chosen to offer Nunes the identical

offer, it would have had to leave that offer open long enough

for Nunes to accept it by pleading guilty. Otherwise, the remedy would not have put Nunes “back in the position he would

2808 RIGGS v. FAIRMAN
have been in if the Sixth Amendment violation had never

occurred,” which we stressed we must do. Id. at 1057. 

Puzzlingly, the state relies on In re Alvernaz, 830 P.2d 747

(1992), for the proposition that it should not be forced to reinstate its plea offer. But in Alvernaz, the district court disagreed with such a ruling by the state court, granted a habeas

writ, and specifically held that a new trial would be an empty

remedy and would deprive the defendant of the opportunity to

accept the plea which he would have taken absent the

improper advice of counsel. See Alvernaz v. Ratelle, 831 F.

Supp. 790, 791, 797-98 (S.D. Cal. 1993). Therefore, Alvernaz

was entitled to be released unless the plea offer was reinstated. Id. 

Blaylock was a federal case brought under 28 U.S.C.

§ 2255, whereas Riggs is a state prisoner, bringing an action

under 28 U.S.C. § 2254. Nevertheless, Blaylock was simply

applying clear federal constitutional law as articulated by the

Supreme Court. We are called to do the same here. 

Although Kimmelman did not involve a plea bargain, it did

involve ineffective assistance of counsel at the pre-trial stage.

Counsel had failed to file a motion to suppress within the time

allowed under state law. As a result, evidence the defendant

objected to on grounds of illegal search and seizure was introduced at trial. The Supreme Court held that, although under

New Jersey law the lack of a timely motion to suppress

allowed the evidence to be admitted, Kimmelman’s constitutional right to effective assistance of counsel was violated by

his counsel’s failure to move to suppress; the right to effective

counsel prevailed over any New Jersey law that interfered

with that right. Kimmelman, 477 U.S. at 379. After all, the

application of federal constitutional law (which is exactly

what 28 U.S.C. § 2254 is all about) cannot be subordinated to

state law concepts. This principle applies even if, as here,

those concepts happen to be precisely the same; a criminal

defendant is entitled to effective assistance of counsel under

RIGGS v. FAIRMAN 2809
California law as well. People v. Bautista, 115 Cal. App. 4th

229, 237-42 (2004). 

The Court in Kimmelman went on to explain that where the

right to effective assistance of counsel conflicts with a principle of state law, “the Constitution constrains our ability to

allocate as we see fit the costs of ineffective assistance. The

Sixth Amendment mandates that the State bear the risk of

constitutionally deficient assistance of counsel”, not the criminal defendant. Kimmelman, 477 U.S. at 379. The only remedy

which could cure the constitutional error was to return the

accused to the point in the criminal proceeding when the ineffective assistance of counsel caused the prejudicial error in

violation of constitutional rights. 

Blaylock and Nunes were simply applying these principles

of federal constitutional law enunciated in Kimmelman to

develop the correct remedy for ineffective assistance of counsel at the plea bargaining stage.5

 As the Supreme Court has

explained, “rules of law may be sufficiently clear for habeas

purposes even when they are expressed in terms of a generalized standard rather than as a bright-line rule.” Williams v.

Taylor, 529 U.S. 362, 382 (2000); see also Robinson v. Ignacio, 360 F.3d 1044, 1057 (9th Cir. 2004) (holding that “Ninth

Circuit precedent may be persuasive authority for purposes of

determining whether a particular state court decision is an

unreasonable application of Supreme Court law, and may also

help us determine what law is clearly established.”) (citation

and quotation marks omitted). The “generalized standards” in

Kimmelman were (1) where a state law conflicts with the constitutional right to effective assistance of counsel, the defendant’s rights prevail and (2) where ineffective assistance of

counsel is so grave as to effect a deprivation of counsel, in

violation of the Sixth Amendment, the state should bear the

5

If more were thought needed, Nunes was a California state case,

brought under 28 U.S.C. § 2254 after the enactment of AEDPA. 

2810 RIGGS v. FAIRMAN
burden of the ineffectiveness of counsel rather than the defendant. 

Further, this is not the typical section 2254 case. We are not

here called upon to review a state court’s decision. The only

decision being appealed is the federal district court’s remedy.

The district court’s decision that Riggs is entitled to a grant

of habeas corpus for ineffective assistance of counsel, which

did differ from the state court’s denial of his petition for writ

of habeas corpus, has not been cross-appealed by the state.

Thus, the traditional limitations of review of a state court

decision under 28 U.S.C. § 2254(d) do not apply to this case

because we are not reviewing a state court decision at all,

much less the “last reasoned decision”

6

 of the state courts.7

In light of this precedent, the majority’s citation to United

States v. Gordon, 156 F.3d 376 (2d Cir. 1998), is unpersuasive. It is a decision from the Second Circuit and, therefore,

is not binding on us. Additionally, the Second Circuit makes

a crucial distinction between cases where a relatively short

time has lapsed, since the defendant’s trial, and cases where

a great deal of time has lapsed and the defendant has already

served more time than he would have served under the plea

offer. We have not as yet recognized this as a factor in fashioning the correct remedy, but it is one worth thinking about.

In cases where, as here, the defendant has served more time

than he would have under the original plea bargain, the Second Circuit itself has found that the correct remedy is to

release the prisoner. Boria v. Keane, 99 F.3d 492, clarified on

reh’g, 90 F.3d 36 (2d Cir. 1996). 

Riggs has been out of prison on bail since the district

court’s decision in 2001—after serving seven years in prison.

6

See Ylst v. Nunnemaker, 501 U.S. 797 (1991). 

7The state court ruling on Riggs’ petition for writ of habeas corpus raising ineffective assistance of counsel consisted of one sentence: “Petition

for writ of habeas corpus is DENIED.” 

RIGGS v. FAIRMAN 2811
Having already served two years longer than the original fiveyear plea bargain, Riggs should be allowed to remain a free

man. We have granted a writ of habeas corpus and ordered a

defendant’s immediate release in a similar case where the

defendant had already served more time than she would have

under the terms of her plea agreement. See Brown v. Poole,

337 F.3d 1155, 1160, 1162 (9th Cir. 2003).8

B. There Is No Evidence the Prosecution Would Have

Withdrawn Its Offer Before Riggs Could Plead Guilty

We review the district court’s decision to grant a 28 U.S.C.

§ 2254 habeas petition de novo as we do issues of law, including the proper application of the law to the facts. Nunes, 350

F.3d at 1051. We review the district court’s finding that the

prosecutor might have withdrawn her five-year plea offer

before Riggs could plead guilty for clear error.9Id. Where

there is a total lack of evidence to support a factual finding,

and substantial evidence to contradict it, such a finding constitutes clear error. Id. 

To support the district court’s finding the prosecutor might

have withdrawn her five-year plea offer had she realized she

could charge the prior felonies as four “strikes”, the majority

opinion requires us to assume: (1) the prosecutor made a mistake in her plea offer; and (2) absent that mistake, the prosecutor would have revoked or withdrawn her offer. Neither of

8

In Brown, a state prisoner pleaded guilty to second degree murder. The

state courts and the federal district court all denied her habeas petitions

seeking to enforce an oral plea agreement. We reversed and granted the

writ ordering her immediate release, holding that a prisoner whose oral

plea agreement called for her to be released in seven-and-a-half years if

she did not incur any disciplinary infractions was entitled to specific

enforcement, even though she would ordinarily not be eligible for parole

for ten years under the law. 

9The district court found there was a “possibility of such a postacceptance withdrawal” of the five-year plea offer. Riggs, 178 F. Supp. 2d

at 1153. 

2812 RIGGS v. FAIRMAN
these conclusions have support in the record. In fact, the evidence supports the opposite inference: the prosecutor knew, at

all relevant times, of Riggs’ vulnerability to the three strikes

sentencing and, regardless, left the plea offer open until the

preliminary hearing. Let us consider the evidence. 

As to whether the offer was a mistake, the record contains

several pieces of evidence that point to the conclusion the

five-year offer was not the product of a mistake. 

For example, although the defense attorney was not aware

of the details of Riggs’ past criminal history, the prosecutor

was. Riggs, 178 F. Supp. 2d at 1144. The prosecutor charged

Riggs’ 1988 conviction in the original Complaint, filed on

October 16, 1995, 12 days after the publication of People v.

Campos, which made it clear the prosecutor could charge

each count on which a conviction had been obtained as a separate “strike.”

10

Further, uncontradicted evidence was presented that this

prosecutor’s office routinely made five- or six-year plea offers

in about fifty percent of the three strikes cases involving petty

theft-with-a-prior; that the offers made before the preliminary

hearing were typically the best offers made to defendants; and

that the prosecutor would have honored even a mistaken offer

under these circumstances. 178 F. Supp. 2d at 1153 n.15. By

contrast, when a defendant rejected an offer, the policy of the

prosecutor’s office was “3rd Strikes cases that have reached

Superior Court [i.e., after a preliminary hearing results in an

1047 Cal. App. 4th 1366, 1372, 45 Cal. Rptr. 2d 706 (1995). The Campos decision was binding law in California at the time it came down. 178

F. Supp. 2d at 1143 n. 4. Although the California Supreme Court later

granted review in Campos, see 908 P.2d 422 (1995), that court later

adopted the rule set forth in Campos in People v. Fuhrman, 941 P.2d 1189

(1997). Let us remember: there was one conviction on four counts. The

prosecutor’s mistake was not as to the fact of conviction or the fact of four

counts. The mistake, if there was one, was only as to whether each count

could count as a strike under the three strikes law. CAL. PENAL CODE § 667.

RIGGS v. FAIRMAN 2813
order that defendant be bound over for trial in the Superior

Court] will NOT be negotiated.” 

This appears to be exactly what happened in Riggs’ case.

The prosecutor made him an offer and, once it was rejected,

the prosecutor refused to negotiate further. The most telling

evidence is the prosecutor’s own notes, which indicate that

she made him a five-year offer knowing about his prior conviction. It was only after Riggs rejected the offer that the prosecutor amended the Information to charge him with a

violation of the three strikes law:

I offered Mr. Riggs mid term times two years for

four years in state prison, plus one year for a prison

prior for five years as my final offer. (My original

offer had been upper term [ ] times two for six

years.) . . . I recommend filing the information as is

[charging Riggs with three strikes], and basically

giving this guy every conceivable moment of the

time that he so richly deserves on his next trip to

state prison. 

Nothing had happened between the time the prosecutor made

the offer and the time these notes were made, other than

Riggs’ rejection of the offer. Riggs did not commit any new

offenses. It is undisputed that the prosecution knew Riggs’

past criminal history at all times. Therefore, particularly in

light of the office’s policies and the prosecutor’s notes, the

most likely explanation for the withdrawal of the offer here is

not the prosecutor’s realization she made an error, but vindictiveness.11

11For some unexplained reason, the district court assumed that a prosecutor could act out of vindictiveness only at trial and beyond. This is not

true. A prosecutor is like any other human being, and can act out of vindictiveness in her willingness to plea bargain or not. See Turner v. Tenessee, 940 F.2d 1000, 1001-02 (6th Cir. 1991), vacated on other grounds,

492 U.S. 902 (1989), reinstated in pertinent part, 940 F.2d 1000 (6th Cir.

1991) (where a defendant’s conviction was overturned on a habeas petition for ineffective assistance of counsel in advising the defendant to reject

a two-year plea bargain, the prosecution would be presumed to have acted

with vindictiveness if it failed to reinstate the original offer on remand).

2814 RIGGS v. FAIRMAN
Perhaps a more charitable explanation than prosecutorial

vindictiveness for the five-year offer remaining open only

until the preliminary hearing is mere bureaucratic inertia. We

have seen the district attorney’s office had adopted a policy

of refusing to plea bargain on three strikes cases once the

defendant was bound over for trial, at the preliminary hearing.

The prosecutor’s office may have offered plea bargains in an

effort to avoid expending resources on preparing for the preliminary hearing in petty theft cases. This could well have

motivated the prosecutor’s office policy of leaving offers

open, no matter their potential for charging three strike

enhancements, until the preliminary hearing, but not afterwards, when the efforts and resources had been spent. 

Riggs could have entered his guilty plea at any time before

the preliminary hearing upon an informally noticed motion for

a change of plea, or at the arraignment. The district court

found Riggs would have accepted the plea offer by pleading

guilty; that is, of course, if he had received effective assistance of counsel. That finding has not been appealed. 

Finally, the record also belies the conclusion that the prosecutor would have withdrawn her offer once she realized her

mistake, if in fact she made a mistake at all. As noted, the

case making it clear that the prosecutor could charge the prior

offenses as separate strikes, People v. Campos, was published

on October 4, 1995, 12 days before the original Complaint

was filed on October 16, 1995, and 26 days before the preliminary hearing on October 30, 1995. Under California law,

attorneys are charged with knowledge of the law. See In re

Marriage of Liu, 242 Cal. Rptr. 649, 656 (Cal. App. 1987).

Although Campos made it clear the prosecution could charge

Riggs’ prior convictions as separate strikes, the prosecution

filed a Complaint which did not allege four prior “serious or

violent” crimes (robberies); it then proceeded to leave open

the five-year offer open until the preliminary hearing. 

When making the five-year offer, the prosecutor did not

even seek the nine-year maximum term she could get based

RIGGS v. FAIRMAN 2815
on the charge in the Complaint being a “second strike”, even

had Riggs not qualified for the three strikes law. 

In spite of all this evidence, the majority’s opinion seems

to rely upon the logical fallacy post hoc, ergo procter hoc to

conclude that because the Information was amended to charge

Riggs with a violation of the three strikes law after Campos

came down, it must have been the Campos decision that made

the prosecutor “realize” she could charge Riggs with a violation of the three strikes law in the Information. But, as shown

above, there is no evidence that the prosecutor ever made a

mistake at all, and furthermore, Campos was published before

the five-year offer was made. 

Thus, the evidence in the record actually compels the conclusions that the prosecution knew Riggs’ prior criminal history and was charged with knowledge that it could charge

Riggs with three strikes. Nevertheless, consistent with the policy of the prosecutor’s office, the prosecutor intentionally

offered Riggs a plea of five years.

C. The Prosecution Is Not Entitled to Relief from

Ineffective Assistance of Counsel Under the Sixth

Amendment

Even if the prosecution had made a mistake of law in offering the five-year plea offer, there is no basis for returning the

state to a “pre-error stage” as does the majority opinion. 

The Sixth Amendment does not protect the state from ineffective assistance of counsel, it protects only the criminal

defendant:

In all criminal prosecutions, the accused shall enjoy

the right . . . to have the Assistance of Counsel for

his defense. 

U.S. CONST. amend VI (emphasis added). “No court, however,

has ever held that the Sixth Amendment protects the rights of

2816 RIGGS v. FAIRMAN
anyone other than criminal defendants.” Portman v. County of

Santa Clara, 995 F.2d 898, 902 (9th Cir. 1993). 

Indeed, once a habeas petitioner prevails on a claim of ineffective assistance of counsel, the state bears the risk of constitutionally deficient counsel. Kimmelman, 477 U.S. at 379.

The state has no remedy for its own ineffective assistance of

counsel, and must bear the risk of ineffective assistance of

defense counsel. Therefore, “even if one might perceive that

the government’s competing interest might be infringed by

requiring that the original offer be reinstated, a contrary result

would impermissibly shift the risk of ineffective assistance of

counsel from the government to [the defendant].” Blaylock,

20 F.3d at 1469. 

The majority opinion holds that the remedy fashioned by

the district court was within the district court’s discretion. As

a general principle, trial courts usually do have broad discretion to fashion remedies. But not where the law mandates that

the remedy effect a specific result. Blaylock mandates that the

remedy “should put the defendant back in the position he

would have been in if the Sixth Amendment violation had not

occurred.” 20 F.3d at 1468. The district court’s remedy does

not effect this result. Whatever discretion a trial court has to

fashion remedies, it is not unchecked. A remedy that does not

correct the constitutional violation is an abuse of discretion.

Hoptowit v. Ray, 682 F.2d 1237, 1245-46 (9th Cir. 1982).

D. The United States Constitution Limits California Law

Permitting the Prosecutor to Withdraw a Plea Offer at

Any Time

The majority’s conclusion also depends on People v. Rhoden, 75 Cal. App. 4th 1346, 1354 (1999). In Rhoden, the prosecutor made Rhoden a plea offer one morning during trial.

The defendant promised to plead guilty. The parties signed an

agreement to this effect. But when the trial reconvened later

that afternoon, and before the defendant could plead guilty,

RIGGS v. FAIRMAN 2817
the prosecutor had received a favorable ruling on the scope of

cross-examination, and decided that he no longer wished to

offer a plea bargain. The prosecutor withdrew the offer. The

trial court held that it could not force the prosecution to keep

its promise. 

The California Court of Appeal affirmed. The court held

that, although the parties had signed an agreement in which

the defendant promised to plead guilty, and the prosecution

promised to dismiss two of the counts charged (normally a

binding bilateral contract), the court could not force either

party to perform the agreement until the defendant either

pleaded guilty or otherwise detrimentally relied on the promise because “unexecuted plea bargains are analogous to unilateral contracts.” 75 Cal. App. 4th at 1354. “Although we do

not believe that plea bargains in criminal cases can be governed by civil contract principles, we find these cases persuasive and adopt the majority view that a prosecutor may

withdraw from a plea bargain before a defendant pleads guilty

or otherwise detrimentally relies on that bargain.” Id. at 1353-

54 (emphasis added).12

What the rule in Rhoden must mean is that the prosecutor

can withdraw an offer before the defendant pleads guilty or

otherwise detrimentally relies on the offer if the defendant is

adequately represented by counsel. What so limits the language in Rhoden? The Sixth Amendment to the United States

Constitution as interpreted in Blaylock and Nunes. 

The right of a prosecutor to withdraw an offer, as recognized by Rhoden, is a right created by a court under state law.

It is, therefore, subordinate to the criminal defendant’s right

to effective assistance of counsel given to him by the United

12That the prosecutor could have withdrawn the offer, however, is not

proof she would have. As demonstrated above, there simply is no proof

here the prosecutor would have withdrawn the offer because of Riggs’

vulnerability to a three strikes enhancement. 

2818 RIGGS v. FAIRMAN
States Constitution. If there is any direct conflict between the

state rule and the rights guaranteed by the federal Constitution, the latter must prevail. “This Constitution, and the Laws

of the United States which shall be made in Pursuance

thereof; and all Treaties made, or which shall be made, under

the Authority of the United States, shall be the supreme Law

of the Land; and the Judges in every State shall be bound

thereby, any Thing in the Constitution or Laws of any State

to the Contrary notwithstanding.” U.S. CONST. art. VI, cl. 2;

see also McCulloch v. Maryland, 17 U.S. 316, 426 (1819). 

Accordingly, even though Nunes was a California state

prisoner, and therefore People v. Rhoden applied just as much

to his case as to this case, the prosecutor was not totally free

to withdraw the offer after our remand. Otherwise, our orders

in Blaylock and Nunes would have been useless and a nonsense. For instance, our remand order was to release Nunes

unless the plea offer was reinstated. Our order did not allow

the plea offer to be withdrawn and for the case to proceed to

trial. If the offer were not reinstated, Nunes went free, not to

trial. Nunes, 350 F.3d at 1049. 

Our remand in Blaylock also implied that, depending on the

outcome of the evidentiary hearing, Blaylock would be entitled to have the original offer reinstated, so he could accept

the offer and proceed to the agreed sentencing rather than to

trial. Blaylock, 20 F.3d at 1468-69. 

Even if the prosecutor could have withdrawn her five-year

offer before Riggs pleaded guilty, the district court here has

necessarily found the prosecutor would not have so withdrawn the offer. This follows from the district court’s finding

that Riggs met Strickland’s requirement that he prove that

“but for counsel’s unprofessional errors, the result would have

been different.” Riggs, 178 F. Supp. 2d at 1149-51; see also

Strickland v. Washington, 466 U.S. 668, 694 (1993). This

finding also was not appealed by the state. Necessarily

implicit in the district court’s finding that with competent

RIGGS v. FAIRMAN 2819
counsel “the result would have been different” is the factual

finding the state would not have withdrawn its offer. After all,

if we are to assume, as does the majority, the state would have

withdrawn its offer, then Riggs would have suffered no prejudice from his counsel’s errors and the district court would not

have found Riggs satisfied the necessary second prong for

Strickland error.

III

Having found that the habeas corpus writ should be

granted, Riggs is entitled to be put back in the position he

would have been in had his counsel been effective. Nunes,

350 F.3d at 1057 (“if the state puts him in the same position

he would have been in had he received effective counsel, that

would cure the constitutional error”). The district court did

not have discretion to fashion a remedy that does not cure the

undisputed constitutional error that occurred here. 

Because Riggs has already served two years longer than he

would have under the five-year plea offer, we should enter an

order that Riggs has served his time and he should remain a

free man. Accordingly, I respectfully dissent.

2820 RIGGS v. FAIRMAN