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
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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
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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)