Rishor v. Ferguson, No. 14-36071 (9th Cir. 2016)
Annotate this CaseA jury convicted petitioner of unlawful possession but acquitted him on two charged counts of second degree assault. The jury, however, impliedly acquitted petitioner on the first degree assault, and convicted him instead of the lesser-included offense of second degree assault. The Washington Court of Appeals reversed the conviction and, on remand, petitioner pled guilty to second degree assault. Petitioner subsequently filed a 28 U.S.C. 2254 habeas petition, arguing that he did not validly waive counsel and that the State violated double jeopardy principles on remand. The district court initially dismissed the habeas petition, but then granted a motion for reconsideration, vacated its prior judgment, and granted habeas relief. The court held that a motion for reconsideration pursuant to Fed. R. Civ. P. 59(e) filed within twenty-eight days of judgment that raises a new claim, including one based on newly discovered evidence or an intervening change in substantive law, is subject to AEDPA’s second-or-successive petition bar. However, a timely motion for reconsideration that asks the district court to reconsider a previously adjudicated claim on grounds already raised should not be construed as a second or successive habeas petition subject to AEDPA’s additional restrictions. In this case, the court held that petitioner's motion for reconsideration properly asked the district court to reconsider the merits of two claims that were raised in his initial habeas petition. Therefore, the court concluded that the district court had jurisdiction to consider petitioner's post-judgment motion in the first instance without seeking pre-certification by the Court of Appeals under 28 U.S.C. 2244(b)(3)(A). On the merits, the court held that the district court abused its discretion by granting reconsideration and awarding habeas relief on his waiver of counsel claim. Finally, the district court erred by granting petitioner habeas relief on his double jeopardy claim. Accordingly, the court reversed, vacated, and remanded with instructions.
Court Description: Habeas Corpus. The panel reversed the district court’s judgment granting, on reconsideration, habeas corpus relief to Kirk Rishor – who, on remand from the Washington Court of Appeals, pled guilty to second degree assault – and remanded for reinstatement of the district court’s judgment denying habeas relief. The panel held that a motion pursuant to Fed. R. Civ. P. 59(e) that raises entirely new claims should be construed as a second or successive habeas petition subject to AEDPA’s restrictions; and that a Rule 59(e) motion raises a “new claim” when it seeks to add a ground for relief not articulated in the original federal habeas petition, presents newly discovered evidence, or seeks relief based on a subsequent change in the law. The panel wrote that, in contrast, a timely Rule 59(e) motion that asks the district court to “correct manifest errors of law or fact upon which the judgment rests” should not be construed as a second or successive petition. The panel held that Rishor’s Rule 59(e) motion – which asked the district court to reconsider whether the state court violated clearly established federal law (1) by holding that Rishor had validly waived counsel on remand, and (2) by holding that the prosecution did not violate double jeopardy principles on remand – did not raise “new claims,” and that the district court therefore had jurisdiction to consider the RISHOR V. FERGUSON 3 post-judgment motion in the first instance without seeking pre-certification by the Court of Appeals under 28 U.S.C. § 2244(b)(3)(A). Applying AEDPA review on the merits, the panel held that the district court abused its discretion by granting reconsideration and awarding Rishor habeas relief. As to Rishor’s waiver of counsel claim, the panel held that the district court erred by finding that the United States Supreme Court had authored clearly established law on whether a defendant, who has validly waived counsel before his first trial, is entitled to a second Faretta hearing on remand. The panel could not say that the Washington Supreme Court’s alternative holding – that Rishor was not prejudiced by the court’s failure to secure a second waiver of counsel – was contrary to, or an unreasonable application of, clearly established federal law. The panel held that the district court also erred in granting habeas relief on Rishor’s claim that the state improperly re- filed first degree assault charges on remand in violation of his rights under the Double Jeopardy Clause. The panel could not say that the Washington Supreme Court’s determination that Rishor’s guilty plea to second degree assault was “wholly voluntary” was based on an unreasonable determination of the facts in light of the evidence, or was contrary to, or involved an unreasonable application of clearly established federal law. The panel explained that the fact that the state re-charged Rishor with first degree assault does not undermine the voluntariness of his guilty plea to second degree assault. The panel concluded that since this court must defer to the Washington Supreme Court’s decision that Rishor’s guilty plea was valid, Rishor could not attack his 4 RISHOR V. FERGUSON conviction based on a constitutional violation that occurred prior to his guilty plea.
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