Remedying the Remedy: Johnson v. Uribe and Determining Prejudice for Sixth Amendment Claims

Boston College Journal of Law & Social Justice, Apr 2014

On November 5, 2012, the Ninth Circuit Court of Appeals declined to rehear Kennard G. Johnson’s habeas petition en banc, thus upholding the appellate panel’s decision to vacate his guilty plea for want of effective assistance of counsel, which overturned the district court’s resentencing remedy. The panel worked within the standard of review to establish prejudice during the plea negotiations, which provided not only an appropriate remedy but also a pragmatic framework for lower courts to assess similar claims of ineffective assistance of counsel. In dissent to the denial of rehearing en banc, Chief Judge Alex Kozinski reasoned that the appellate panel abused its own discretion by not showing the proper deference to the district court’s findings and misapplying the test for ineffective assistance of counsel. Ultimately, the Ninth Circuit panel provided a workable Sixth Amendment framework for the lower courts to follow. This framework diminishes the chance that future indigent defendants, like Johnson, will have to suffer the injustice of receiving ineffective assistance of counsel with an inadequate remedy on appeal.

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Remedying the Remedy: Johnson v. Uribe and Determining Prejudice for Sixth Amendment Claims

Boston College Journal of Law & Social Justice Remedying the Remedy: Johnson v. Uribe and Determining Prejudice for Sixth Amendment Claims Keith Kessinger 0 1 0 Boston College Law School 1 Thi s Comments is brought to you for free and open access by the Law Journals at Digital Commons @ Boston College Law School. It has been accepted for inclusion in Boston College Journal of Law & Social Justice by an authorized editor of Digital Commons @ Boston College Law School. For more information , please contact Part of the Constitutional Law Commons, Criminal Law Commons, and the Criminal Procedure Recommended Citation Keith Kessinger, Remedying the Remedy: Johnson v. Uribe and Determining Prejudice for Sixth Amendment Claims, 34 B.C.J.L. & Soc. Just. E. Supp. 63 (2014), http://lawdigitalcommons.bc.edu/jlsj/vol34/iss3/7 Article 7 Follow this and additional works at: http://lawdigitalcommons.bc.edu/jlsj Commons Recommended Citation KEITH KESSINGER* INTRODUCTION In September 2006, Kennard G. Johnson was in custody and awaiting trial in California for theft-related felonies pertaining to defrauding an auto dealership.1 To witness the birth of his child, Johnson entered into a Vargas waiver, which allowed for Johnson to be released on his own recognizance in exchange for a guilty plea to all of the charges and enhancements as well as a prison sentence of fourteen years and four months.2 If Johnson complied with the conditions of his release and returned for resentencing, the prosecutor would consent to a reduced sentence of six years.3 After Johnson failed to ap3 Johnson III, 700 F.3d at 422. * Staff Writer, BOSTON COLLEGE JOURNAL OF LAW & SOCIAL JUSTICE (2013–2014). 1 See Johnson v. Uribe (Johnson III), 700 F.3d 413, 420–21 (9th Cir. 2012), cert. denied, 134 S. Ct. 617 (2013); People v. Johnson (Johnson I), No. E045514, 2009 WL 1365764 (Cal. Ct. App. June 17, 2009). 2 See Johnson III, 700 F.3d at 421–22; People v. Vargas, 273 Cal. Rptr. 48, 52 (1990) (upholding a structured plea, in which defendant receives a longer sentence for failing to appear at a future hearing). pear for resentencing, which violated his Vargas waiver, the state court imposed the sentence of fourteen years and four months.4 Johnson later learned that his sentence exceeded the California statutory maximum because some of the enhancements were not compliant with the California Penal Code.5 Johnson’s attorney, Deputy Public Defender David Durdines, did not notice this error when negotiating the Vargas waiver because he failed to research possible sentencing options for the charges and enhancements.6 After exhausting his state appeals, Johnson filed a habeas corpus petition in the United States District Court for the Central District of California.7 Johnson alleged ineffective assistance of counsel, a Sixth Amendment violation, because Durdines failed to adequately advise him prior to the Vargas plea agreement or object to his sentence in court.8 The district court agreed and ordered the state court to either resentence Johnson within one hundred and twenty days to a lawful sentence or release him.9 On appeal, a three-judge panel for the Ninth Circuit Court of Appeals affirmed the district court’s decision but vacated the remedy.10 The panel reasoned that the ineffective assistance of counsel tainted the entire plea negotiations and vacating the guilty plea was the only way to return Johnson to the position he would have been in had no Sixth Amendment violation occurred.11 On its own motion, the Ninth Circuit ultimately declined to rehear Johnson’s case en banc.12 In dissent, Chief Judge Alex Kozinski argued that the Ninth Circuit panel did not afford the district court the proper deference and abused its own discretion in vacating the district court’s remedy.13 Part I of this Comment summarizes the factual and procedural history of Johnson’s criminal case. Part II then examines how the Ninth Circuit panel applied the abuse-of-discretion standard to the district court’s decision, leading to a stronger finding of prejudice and a divergent habeas remedy. Finally, Part 4 Id. 5 See id. at 421–22; Johnson v. Uribe (Johnson II), No. EDCV 10-0164-GW (RC), 2010 WL 5671780, at *5 (C.D. Cal. Nov. 12, 2010), aff’d in part, vacated in part, 700 F.3d 413 (9th Cir. 2013) (noting that the prosecution improperly added three prior crime enhancements to Johnson’s amended charges); see also CAL. PENAL CODE § 667.5 (West 2012) (describing which enhancements may add to a defendant’s felony prison term). 6 See Johnson III, 700 F.3d at 421–22, 425–26. 7 See id. at 422–23. In his state appeals, Johnson argued Durdines improperly advised him to accept a plea agreement that violated both California’s penal code and appellate case law. Johnson I, 2009 WL 1365764, at *2. 8 Johnson III, 700 F.3d at 4 23; see Johnson II, 2010 WL 5671780, at *2; see also U.S. CONST. amend. VI. 9 See Johnson III, 700 F.3d at 4 23; Johnson II, 2010 WL 5671780, at *18. 10 Johns (...truncated)


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Keith Kessinger. Remedying the Remedy: Johnson v. Uribe and Determining Prejudice for Sixth Amendment Claims, Boston College Journal of Law & Social Justice, 2014, Volume 34, Issue 3,