Rishor v. Ferguson

• Decision Date: 06 May 2016
• Docket Number: No. 14–36071.,14–36071.
• Citation: 822 F.3d 482
• Parties: Kirk RISHOR, Petitioner–Appellee, v. Bob FERGUSON, Attorney General for the State of Washington, Respondent–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

822 F.3d 482

Kirk RISHOR, Petitioner–Appellee

v.Bob FERGUSON, Attorney General for the State of Washington, Respondent–Appellant.

No. 14–36071.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 11, 2015.

Filed May 6, 2016.

Alex Kostin (argued), Assistant Attorney General; Robert W. Ferguson, Attorney General, Olympia, WA, for Respondent–Appellant.

Todd Maybrown, Allen, Hansen & Maybrown, Seattle, WA, for Petitioner–Appellee.

Appeal from the United States District Court for the Western District of Washington, Marsha J. Pechman, Chief District Judge, Presiding. D.C. No. 2:11–cv–01492–MJP.

Before: MICHAEL DALY HAWKINS and RICHARD C. TALLMAN, Circuit Judges and JOAN HUMPHREY LEFKOW,^* Senior District Judge.

OPINION

TALLMAN

, Circuit Judge:

Kirk Rishor waived counsel and represented himself during his 2004 trial in Washington's Whatcom County Superior Court on charges of first degree assault, second degree assault, and unlawful possession of a firearm. The jury convicted him on the unlawful possession charge but acquitted him on the two charged counts of second degree assault. The jury, however, impliedly acquitted Rishor on first degree assault, and convicted him instead of the lesser-included offense of second degree assault.

Rishor's conviction was reversed by the Washington Court of Appeals, and on remand, Rishor pled guilty to second degree assault. Despite pleading guilty, Rishor commenced a series of post-judgment motions in superior court challenging his conviction. After exhausting review of his conviction in state court, Rishor petitioned the federal district court for habeas relief under 28 U.S.C. § 2254

, arguing that he did not validly waive counsel and that the State violated double jeopardy principles on remand. The district court initially dismissed Rishor's habeas petition with prejudice, and Rishor then filed a motion for reconsideration. In 2014, nearly a year later, the district court granted Rishor's motion for reconsideration, vacated its prior judgment, and granted habeas relief. We now reverse the district court's judgment and remand for reinstatement of the judgment denying habeas relief.

I

In May 2004, Kirk Rishor proceeded to trial in Whatcom County Superior Court on charges of first degree assault (count 1), second degree assault (counts 2 and 3), and first degree unlawful possession of a firearm (count 4). In a pre-trial hearing, Rishor informed Judge Steven J. Mura, the superior court judge assigned to the trial, that he wished to proceed pro se. Judge Mura fully advised Rishor of the risks and responsibilities associated with self-representation and attempted to dissuade Rishor from waiving counsel. Specifically, Judge Mura informed Rishor that he would not be able to claim ineffective assistance of counsel on appeal, that he would be responsible for putting together proposed jury instructions, and that he would be bound by the same rules as lawyers—including the rules of evidence and ethics. Judge Mura and Rishor also engaged in the following colloquy:

THE COURT: [I]n my 30 years of being on both sides of the courtroom as a defense counsel, prosecutor and now 12 years as a judge in a criminal case I have never seen anybody who has ever represented themselves competently; do you understand that?

THE DEFENDANT: Yes, I do.

THE COURT: If you represent yourself incompetently you're stuck with you and you suffer the consequences. The consequences if convicted, the State informs me, is a sentence of life without possibility of parole.

THE DEFENDANT: Yes, sir. I fully understand that.

THE COURT: And that as a practical matter if you represent yourself—and this is just me talking up here.

THE DEFENDANT: Okay.

THE COURT: As a practical matter the court might as well sign an order sending you to prison without possibility of parole right now because you're going to screw your case up; do you understand that?

Despite these warnings, Rishor confirmed his desire to proceed pro se, Judge Mura approved the request, and Rishor (assisted by standby counsel) ably represented himself throughout his jury trial.

Ultimately, the jury acquitted Rishor on the two charged counts of second degree assault (counts 2 and 3) and convicted him on the charge of unlawful possession of a firearm (count 4). The jury, however, impliedly acquitted Rishor on the greater charge of first degree assault (count 1)¹ and convicted Rishor of the lesser-included offense of second degree assault. The jury also made a special finding that Rishor was armed with a firearm at the time of the assault. Rishor was sentenced to 115 months confinement on the assault charge, which included 36 months for the weapon enhancement, and 102 months on the unlawful possession charge. All sentences were ordered to run concurrently.

On direct review, the Washington Court of Appeals reversed Rishor's second degree assault conviction due to erroneous jury instructions and remanded the case back to the superior court for a new trial on that charge. On November 2, 2006, the parties again met with Judge Mura, the same judge who had presided over Rishor's first trial, to “reiterate [Rishor's] request to proceed in a pro se basis.” At this initial hearing on remand, Rishor requested that Thomas Fryer be appointed as his standby counsel to assist him with filing motions from jail because incarceration made it difficult for Rishor to do so. Judge Mura instructed Rishor to draft an order appointing Fryer as standby counsel, which Rishor subsequently prepared and filed with the court several days later.

On remand, the State initially filed a first amended information charging Rishor with one count of first degree assault while armed with a deadly weapon, the same conduct for which the jury impliedly acquitted Rishor at his first trial. On January 8, 2007, the State filed a second amended information charging Rishor with second degree assault without a firearm allegation, and that same day Rishor entered a guilty plea to that unenhanced charge. At his plea hearing, Rishor explained that he was pleading guilty “freely and voluntarily.” He acknowledged that the plea agreement allowed him to avoid the weapon enhancement. He also stated that he wanted to take the plea so that his daughter, who was about to start college, would not have to come back for a second trial. The court imposed an 84–month sentence on the second degree assault charge, which was ordered to run concurrently with Rishor's 102–month unlawful possession conviction.

Rishor then, through counsel, appealed his new sentence to the Washington Court of Appeals, arguing that the prosecutor breached the plea agreement by urging the trial court to impose a higher sentence on the unlawful possession charge.² The Washington Court of Appeals affirmed Rishor's judgment and sentence, and Rishor did not seek further review from the Washington Supreme Court.

On January 10, 2008, Rishor filed a motion to withdraw his guilty plea and a state habeas petition in Whatcom County Superior Court. In his post-judgment motion and state habeas petition, Rishor argued that he was not formally arraigned on remand, he was coerced into pleading guilty, and he did not adequately waive his right to counsel following remand. Rishor's post-judgment motion and petition were eventually transferred to the Washington Court of Appeals for consideration as a collateral state habeas petition, called a “personal restraint petition” (PRP), which was dismissed on March 8, 2010.

On September 9, 2010, the Washington Supreme Court denied Rishor's motion for discretionary review. Relevant to this appeal, the Washington Supreme Court found that Rishor had validly waived his right to counsel before his original trial and that Rishor was “more than ready to proceed pro se” on remand. The court also found that Rishor's standby counsel had waived Rishor's right to first appearance and formal arraignment on remand. Finally, the court rejected Rishor's claim that he was coerced into pleading guilty and found that Rishor's plea was “wholly voluntary.”

Next, Rishor filed a federal habeas corpus petition under 28 U.S.C. § 2254

in the United States District Court for the Western District of Washington. Rishor alleged that he was entitled to relief on three grounds stemming from his remand proceedings: (1) he did not receive notice of the charges against him, (2) he was not arraigned, and (3) he did not validly waive counsel. Rishor also filed a supplemental brief in connection with his habeas petition that argued that the prosecution violated double jeopardy principles on remand by initially recharging him with first degree assault, conduct on which the jury had acquitted him during his first trial.³ On October 28, 2013, United States Magistrate Judge James P. Donohue issued a Report and Recommendation, concluding that the district court should deny the habeas petition with prejudice. Chief United States District Judge Marsha J. Pechman adopted the Report and Recommendation, dismissed the habeas petition with prejudice, and entered judgment against Rishor.

Rishor then filed a motion for reconsideration—the subject of this appeal. Rishor asked the district court to reconsider whether he was entitled to habeas relief on the ground that he did not validly waive counsel on remand. Rishor also asked the district court to reconsider whether he was entitled to habeas relief on the ground that the prosecution had violated due process and double jeopardy principles by failing to re-arraign him and re-charging him with first degree assault in order to secure a plea bargain.⁴

On December 3, 2014, the district court granted Rishor's motion to reconsider and vacated its prior judgment. The court held that the Washington Supreme Court's decision was contrary to, or an unreasonable application of, clearly established federal law and that Rishor was entitled to habeas relief on both his waiver of counsel and double jeopardy claims. The State timely appealed.

II

Our review...