Michael Wayne RIGGS, Petitioner-Appellant, v. J.W. FAIRMAN, Jr., Warden, Respondent-Appellee, 399 F.3d 1179

Opinion by Judge RAWLINSON; Dissent by Judge BEA. 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 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. 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-to-life in prison. 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 AED-PA, 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).

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 his counsel’s errors. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To warrant relief under Strickland, defense counsel’s performance must have fallen below an “objective standard of reasonableness.” Id. at 688, 104 S.Ct. 2052. Riggs must show a “reasonable probability” that, but for his counsel’s ineffectiveness, the result of his proceedings would have differed.

Id. at 694, 104 S.Ct. 2052. “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. 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 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. Deftcient performance 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, 104 S.Ct. 2052. 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. 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).

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, 104 S.Ct. 2052, 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, 104 S.Ct. 2052.

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. 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 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 five-year 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. Ona 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, 101 S.Ct. 665, 66 L.Ed.2d 564 (1981).

The Supreme Court has instructed that “[federal habeas corpus'practice, as reflected by the decisions of this Court, indicates that a court has broad discretion in conditioning a judgment granting habe-as relief. Federal courts are authorized, under 28 U.S.C. § 2243, to dispose of ha-beas corpus matters ‘as law and justice require.’ ” Hilton v. Braunskill, 481 U.S. 770, 775, 107 S.Ct. 2113, 95 L.Ed.2d 724 (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 1045, 1056-57.

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). 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, 101 S.Ct. 665.

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, 89 Cal.Rptr.2d 819 (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 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 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. . Riggs' prior robbery convictions converted his otherwise misdemeanor petty theft offense into the felony of petty theft with a prior. See Cal.Penal Code § 666. . "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, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (internal quotation marks omitted). .

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, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). . We 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.