Thursday, March 10, 2005

Riggs v. Fairman

No. 02-55185 (3-7-05). The petitioner faced a maximum, he thought, of nine years for his petty theft charge. That is what his lawyer told him. The lawyer also told him he could do better than the plea offer of five years, and so advised trial. Mistake. After conviction, it turned out that the petitioner was a California three-strikers, and so got a 25 to life sentence. The prosecutor had missed this too. The state courts found no IAC, but the district court did. In terms of remedy, the district court balked at reinstating the plea offer because the prosecutor was mistaken, and so vacated the sentence and placed the parties in a pre-trial stage. The petitioner on appeal argued that the court should have reinstated the plea offer under specific performance. The 9th agreed with the district court that it couldn’t order specific performance because, although the re was IAC, the prosecutor was also mistaken and would not have offered that plea if she knew the facts. Dissenting, Bea makes the point that if the petitioner had adequate counsel, he would have taken the plea – mistake or no. Her analysis is to look at the point that IAC took place in the context of the plea, which was the advice about what he faced and his rejection of the offer.


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