Kennard Johnson v. Domingo Uribe, Jr.

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KENNARD GERALD JOHNSON,  No. 11-55187
Petitioner-Appellant,
v.  D.C. No.
10-CV-00164-GW
DOMINGO URIBE,
OPINION
Respondent-Appellee.

Appeal from the United States District Court
for the Central District of California
George H. Wu, District Judge, Presiding
Argued and Submitted
April 9, 2012—Pasadena, California
Filed June 22, 2012
Before: Andrew J. Kleinfeld and Milan D. Smith, Jr.,
Circuit Judges, and Algenon L. Marbley, District Judge.*
Opinion by Judge Marbley
*The Honorable Algenon L. Marbley, United States District Judge for
the Southern District of Ohio, sitting by designation.
7397
7400 JOHNSON v. URIBE
COUNSEL
Michael J. Proctor, Michael V. Schafler (argued), Albert
Giang, for petitioner-appellant Kennard Gerald Johnson.
Kamala D. Harris, Attorney General of California, Gary W.
Schons, Senior Assistant Attorney General, Kevin R. Vienna,
Supervising Deputy Attorney General, Ronald A. Jakob
(argued), Deputy Attorney General (argued), for respondent-
appellee Domingo Uribe.
OPINION
A. MARBLEY, District Judge:
Kennard G. Johnson was sentenced to eleven years, four
months in the Superior Court of California following his entry
of a plea of guilty to four theft-related counts for defrauding
an auto dealership and stealing a vehicle. He petitioned for a
writ of habeas corpus in federal court, which the district court
granted. Johnson appeals, challenging the adequacy of the dis-
trict court’s chosen remedy for the violation of Johnson’s
Sixth Amendment right to effective assistance of counsel.
Johnson claims that it was error for the district court to grant
the writ subject to imposing a new sentence within the lawful
maximum range. Johnson argues that his conviction should be
vacated and his Vargas waiver voided, thus returning him to
the pre-plea stage of proceedings.
The ineffective assistance of counsel Johnson received
affected the entire plea negotiation stage of the proceedings in
the Superior Court. We hold, therefore, that the district court’s
decision to grant the writ subject to the state court re-
sentencing Johnson failed adequately to remedy the constitu-
tional violation. We AFFIRM the district court’s grant of
Johnson’s habeas petition but VACATE the district court’s
JOHNSON v. URIBE 7401
remedy. The district court should grant a conditional writ of
habeas corpus, subject to the state court vacating Johnson’s
conviction and granting him a new trial.
I. BACKGROUND
A. Johnson’s Arrest and Theft Charges1
Johnson was arrested for submitting a fraudulent check to
a car dealership for $4,000 and providing false information on
a credit application in order to steal a vehicle, on or about
June 28, 2005. On August 16, 2005, Johnson was charged
with three theft-related felonies as well as various enhance-
ments for his prior criminal history.2 The Public Defender’s
Office represented Johnson, who pleaded not guilty to the
charges, and was released on conditional own-recognizance
(“OR”) status.
The preliminary hearing was held on April 10, 2006. John-
son was represented by Deputy Public Defender David Dur-
dines. Johnson met Durdines for the first time at this hearing.
They only spoke for a couple of minutes that day, and only
while they were together in the courtroom. Over the next five
months, Durdines spoke with Johnson on only those few
occasions that Johnson appeared in court, and for only a few
1
Much of the following factual overview is taken from the November
12, 2010 Report and Recommendation of the Magistrate Judge, which was
adopted in full by the district court. See Johnson v. Uribe, No. EDCV 10-
0164-GW(RC), 2010 U.S. Dist. LEXIS 140578 (C.D. Cal. Nov. 10, 2010).
2
Johnson was initially charged with one count of unlawful taking of a
vehicle (Cal. Veh. Code § 10851), one count of grand theft auto (Cal.
Penal Code § 487(d)(1)), and one count of receiving stolen property (Penal
Code § 496d(a)). As to all counts, Johnson was alleged to have suffered
a prior strike within the meaning of the Three Strikes law, Penal Code
§§ 1170.12(a)-(d) and 667(b)-(i) (L.A. No. BA209791), two prior prison
terms within the meaning of Penal Code § 667.5(b) (L.A. Nos. KA055864
and VA062637), and a prior Penal Code § 487(d) conviction within the
meaning of Penal Code § 666.5.
7402 JOHNSON v. URIBE
minutes each time. Durdines did not interview Johnson about
the events underlying the charges against him or ask John-
son’s version of the underlying facts, nor did Durdines ask
Johnson about the enhancements or prior criminal history
alleged against him.
On April 12, 2006, the People filed the Information against
Johnson, setting forth the same charges, prior strike, two prior
prison terms, and prior grand theft conviction alleged in the
felony complaint. On April 19, 2006, Johnson pleaded not
guilty to the charges in the Information.
The People subsequently filed a First Amended Informa-
tion against Johnson on May 26, 2006. The First Amended
Information differed from the initial Information by adding a
count for forgery, and adding three additional prior prison
terms for enhancements to Johnson’s sentence. It is now
undisputed, however, that these three prior prison terms do
not fall within the meaning of Penal Code § 667.5(b)3 and
should not have served as additional enhancements of John-
son’s sentence.
Also on May 26, 2006, Johnson was arraigned and pleaded
not guilty to all charges and enhancements alleged in the First
Amended Information. At the hearing, Johnson was again rep-
resented by Durdines, who only engaged in a brief conversa-
tion with Johnson and did not discuss the First Amended
Information with Johnson, the events underlying any of the
charges (new or old), or the enhancements alleged in the First
Amended Information.
Prior to May 30, 2006, the People made a plea offer of five
years and a strike to Johnson. Durdines only discussed this
offer with Johnson for two or three minutes and did not advise
3
Cal. Pen. Code § 667.5 provides the requirements for enhancements of
prison terms for new offenses because of prior prison terms.
JOHNSON v. URIBE 7403
him about whether he should accept or reject the offer. John-
son subsequently rejected the offer on May 30, 2006.
B. Johnson’s Vargas Waiver and Guilty Plea
Johnson failed to appear at his next scheduled hearing, and
his OR status was revoked as a result. Johnson was placed in
custody, and was still in custody at the pretrial hearing on
September 8, 2006. At the pretrial hearing, Johnson conveyed
to Durdines his desire to be released on OR or bail so he
could be present for the upcoming birth of his child, occurring
sometime later that month. Durdines approached the govern-
ment with Johnson’s request.
The prosecutor advised Durdines that since Johnson had
previously failed to appear at a hearing, she would only agree
to Johnson’s OR release if Johnson agreed to enter into a Var-
gas waiver, pursuant to People v. Vargas, 223 Cal. App. 3d
1107, 273 Cal. Rptr. 48 (Cal. Ct. App. 1990) (hereafter, the
“Vargas waiver”), in which Johnson would plead guilty to all
charges and alleged enhancements and accept a sentence of
fourteen years and four months, which she believed to be the
maximum sentence on those offenses and enhancements.
Under the terms of the Vargas waiver, if Johnson complied
with the conditions of his release and returned to court for
resentencing, the People would agree to a lower sentence of
six years and would not file any new charges against Johnson
for failing to appear on June 16, 2006.
When Durdines relayed the People’s specific plea offer of
fourteen years and four months to Johnson later that day, Dur-
dines had not interviewed Johnson about the facts of his case
or the charges and enhancements alleged against him, had not
discussed Johnson’s case or priors with anyone from the dis-
trict attorney’s office, had not done any investigation into
Johnson’s alleged priors, and had not done any legal research
on possible sentencing options for the alleged charges and
enhancements.
7404 JOHNSON v. URIBE
Durdines did advise Johnson that agreeing to a Vargas
waiver is generally not a good idea because of the risks
involved if Johnson were unable to comply with the condi-
tions of his release. As stated by the Magistrate Judge, Dur-
dines neglected to “advise [Johnson] that the People’s specific
offer of fourteen years and four months was an unlawful sen-
tence that was greater than the sentence authorized by Califor-
nia law and greater than the sentence that [Johnson] could
receive if he went to trial and was found guilty of all charges
and the alleged enhancements were proven.”
On Durdines’s advice, Johnson accepted the government’s
offer, and, through Durdines, he entered into a negotiated plea
agreement including a Vargas waiver. Under the terms of the
agreement, Johnson agreed to plead guilty to all counts and
admit all prior conviction allegations for the maximum prison
sentence of fourteen years and four months, with the promise
that his sentence would be reduced to six years if he returned
to court on September 22, 2006, for resentencing with no new
violations of law. Durdines joined and concurred in the plea,
and the court accepted the plea and Vargas waiver. Johnson
was sentenced to fourteen years and four months, with the
imposition of the sentence stayed pending his “resentencing”
to a six-year term. The court thereupon released Johnson once
again on OR status.
On September 22, 2006, Johnson appeared in Superior
Court with Durdines for the scheduled resentencing hearing,
but the court continued the resentencing to September 29,
2006. Johnson failed to appear for resentencing on September
29, 2006, and the Superior Court revoked Johnson’s OR
release and bail and issued a bench warrant for Johnson’s
arrest. On October 3, 2007, the bench warrant was recalled
and Johnson, who was then in county jail, appeared electroni-
cally. On March 21, 2008, the Superior Court found Johnson
in violation of the Vargas conditions for failing to appear for
resentencing at the September 29, 2006 hearing, and lifted the
JOHNSON v. URIBE 7405
stay on the previously imposed sentence of fourteen years and
four months.
C. The District Court Grants the Habeas Petition
Johnson unsuccessfully appealed his sentence, claiming
ineffective assistance of counsel, to the California Court of
Appeal and the California Supreme Court. On February 2,
2010, after exhausting claims in state court, he filed a habeas
petition in federal district court alleging ineffective assistance
of trial counsel due to his counsel’s failure adequately to
advise him prior to his plea, or to object to the sentence
imposed by the trial court. On August 5, 2010, Appellee
Domingo Uribe, Jr., in his capacity as California state prison
warden, filed a supplemental memorandum in which he con-
ceded that three of the one-year prior conviction enhance-
ments to which Johnson initially pled and was sentenced
under were invalid. Uribe argued that the plea and sentence
were proper and authorized by law in all other respects.
On October 13, 2010, Magistrate Judge Chapman held an
evidentiary hearing on Johnson’s habeas corpus petition.
Johnson, his trial counsel Durdines, and the prosecutor who
negotiated Johnson’s plea agreement testified at the hearing.
The Magistrate Judge, in her Report and Recommendation,
determined, inter alia, that Johnson had received ineffective
assistance of counsel in violation of the Sixth Amendment,
and recommended that the district court grant Johnson’s
habeas petition.
The Magistrate Judge also found, however, that “[i]t is
clear that [Johnson] would have accepted the People’s offer
of the Vargas waiver had his defense counsel provided effec-
tive assistance and made sure the statutory maximum was
properly calculated at less than the term [Johnson] accepted
as part of his guilty plea.” The Magistrate Judge recom-
mended remedying the constitutional violation by “granting
petitioner’s habeas corpus petition, and requiring respondent
7406 JOHNSON v. URIBE
to release petitioner within 120 days of the entry of Judgment
unless the San Bernadino County Superior Court, within that
time period, resentences petitioner to a lawful sentence.”
The district court approved and adopted the Report and
Recommendation’s findings of fact and conclusions of law,
and granted Johnson’s habeas petition, finding that Johnson’s
defense counsel had “rendered ineffective assistance in viola-
tion of [Johnson’s] Sixth Amendment rights when he failed to
advise [Johnson] he was pleading guilty to an unlawful sen-
tence,” and that Johnson was prejudiced as a result. The dis-
trict court ordered Johnson released within 120 days unless
the state court resentenced him to a lawful sentence.
Concurrently, the district court granted a Certificate of
Appealability to this Court under 28 U.S.C. § 2253(c)(2) as to
the remedy afforded to Johnson. In the Certificate of Appeala-
bility, the district court acknowledged that “reasonable jurists
would find the district court’s remedy of the violation of peti-
tioner’s constitutional rights debatable since this Court has
remanded the matter to the state courts to resentence peti-
tioner to a lawful term, rather than vacating the guilty plea.”
On January 31, 2011, Johnson timely filed a Notice of Appeal
in this Court.
After the district court granted the habeas petition, on
March 4, 2011, the Superior Court struck the three prior con-
victions that did not qualify as enhancements under Penal
Code § 667.5(b), and modified Johnson’s sentence to the
adjusted maximum term of eleven years and four months. The
court issued its judgment and ordered an amended abstract of
conviction.4 Johnson is currently imprisoned and serving his
sentence at California State Prison in Norco, California.
4
Appellant has submitted, in support of his Opening Brief, a certified
Reporter’s Transcript of Oral Proceedings on March 4, 2011, covering
Johnson’s resentencing hearing in Superior Court. Johnson moves the
Court to take judicial notice of the transcript under Fed. R. Evid. 201,
JOHNSON v. URIBE 7407
II. JURISDICTION
We have jurisdiction over this appeal from a district court’s
final order in a habeas corpus proceeding under 28 U.S.C.
§ 2253(a).
III. ANALYSIS
A. The District Court’s Remedy for the Ineffective
Assistance of Counsel
1. Standard of Review
A district court’s determination of the appropriate remedy
for a constitutional violation on a habeas petition is reviewed
for abuse of discretion. Chioino v. Kernan, 581 F.3d 1182,
1184 (9th Cir. 2009). In general terms, we have held that a
district court abuses its discretion “when it makes an error of
law, when it rests its decision on clearly erroneous findings of
fact, or when we are left with a definite and firm conviction
that the district court committed a clear error of judgment.”
United States v. Ressam, No. 09-30000, 2012 U.S. App.
LEXIS 9255, at *45 (9th Cir. May 4, 2012) (en banc) (internal
quotations omitted).
which provides that the court may judicially notice a fact that is not sub-
ject to reasonable dispute because it:
(1) is generally known within the trial court’s territorial jurisdic-
tion; or
(2) can be accurately and readily determined from sources whose
accuracy cannot reasonably be questioned.
Fed. R. Evid. 201(b).
The transcript is a certified copy from the state court whose accuracy
cannot reasonably be questioned. Appellant’s unopposed motion is
granted, and we take judicial notice of the transcript of proceedings.
7408 JOHNSON v. URIBE
2. Discussion
[1] In its two recent companion decisions of Missouri v.
Frye and Lafler v. Cooper, the Supreme Court reaffirmed that
defendants have a Sixth Amendment right to effective assis-
tance of counsel “at all critical stages of the criminal proceed-
ings,” which includes “the entry of a guilty plea,” but also
extends to the “plea-bargaining process” as a whole. See Mis-
souri v. Frye, 132 S. Ct. 1399, 1406 (March 21, 2012) (recog-
nizing that “[p]lea bargains have become so central to the
administration of the criminal justice system that defense
counsel have responsibilities in the plea bargain process,
responsibilities that must be met to render the adequate assis-
tance of counsel that the Sixth Amendment requires”); Lafler
v. Cooper, 132 S. Ct. 1376, 1387 (March 21, 2012) (holding,
inter alia, that “[i]f a plea bargain has been offered, a defen-
dant has the right to effective assistance of counsel in consid-
ering whether to accept it”).
That Johnson received ineffective assistance of counsel in
the Superior Court, and that he was prejudiced by that ineffec-
tive assistance, are both settled issues.5 Neither party disputes
the district court’s finding that Durdines rendered ineffective
assistance to Johnson by failing to “perform an adequate
investigation into the facts of [Johnson]’s case or the sentence
enhancements alleged against [Johnson] before [Johnson]
pleaded guilty,” which was compounded “by his evident mis-
understanding of the law surrounding P.C. § 667.5(b)
enhancements.”
It is also undisputed that Johnson’s current sentence of
eleven years and four months is now within the lawful sen-
tencing range under the California Penal Code. Johnson nev-
ertheless contends that the district court’s remedy of granting
5
See, e.g., Lafler, 132 S.Ct at 1391 (where, because “the fact of defi-
cient performance has been conceded by all parties,” the Court found “no
need to address this question”).
JOHNSON v. URIBE 7409
the petition subject to the state court resentencing Johnson
within the lawful range was insufficient to cure Durdines’s
ineffective assistance of counsel, and constituted an abuse of
discretion, because it did not permit Johnson to withdraw his
guilty plea and void his Vargas waiver. Specifically, Johnson
argues that resentencing him under the same plea agreement,
while simply adjusting the term to reflect the removal of the
three invalid enhancements, did not place him in the position
he would have been in prior to receiving the ineffective assis-
tance, because it fails to address the ineffective assistance
Johnson received throughout the pre-plea stage of the pro-
ceedings.
Uribe retorts that the district court’s factual findings are
entitled to deference, and the district court determined that
Johnson would have accepted the Vargas waiver agreement
even if he had been competently advised of the correct maxi-
mum sentence for his plea. Uribe contends that the district
court’s remedy gave Johnson the full “benefit of the bargain”
by resentencing him to the lawful maximum, taking three
years off of his sentence. As Johnson does not challenge the
correctness of the calculated enhancements to his new sen-
tence, Uribe claims, it follows that the district court’s exercise
of discretion was appropriate and the judgment should be
affirmed.
Federal courts are authorized, under 28 U.S.C. § 2243, to
dispose of habeas corpus matters “as law and justice require.”
District courts enjoy “broad” discretion in fashioning reme-
dies for habeas relief. Hilton v. Braunskill, 481 U.S. 770, 775
(1987). The court’s discretion, however, is still bound by the
Constitution, which “constrains our ability to allocate as we
see fit the cost of ineffective assistance.” Kimmelman v. Mor-
rison, 477 U.S. 365, 379 (1986) (“The Sixth Amendment
mandates that the State bear the risk of constitutionally defi-
cient assistance of counsel.”).
[2] An adequate Sixth Amendment remedy “must ‘neutral-
ize the taint’ of a constitutional violation, while at the same
7410 JOHNSON v. URIBE
time not grant a windfall to the defendant or needlessly squan-
der the considerable resources the State properly invested in
the criminal prosecution.” Lafler, 132 S. Ct. at 1388 (quoting
United States v. Morrison, 449 U.S. 361, 365 (1981)) (inter-
nal citations omitted). The court’s remedy “should put the
defendant back in the position he would have been in if the
Sixth Amendment violation never occurred,” Chioino, 581
F.3d at 1184 (quotations omitted), but without “unnecessarily
infring[ing] on competing interests.” Lafler, 132 S. Ct. at
1388.
The Magistrate Judge determined that counsel in this case
provided ineffective assistance before, during, and after the
plea negotiation stage, as well as at the time Johnson entered
his unconstitutional guilty plea with a Vargas waiver:
First, Mr. Durdines did not perform an adequate
investigation into the facts of [Johnson’s] case or the
sentence enhancements alleged against [Johnson]
before [Johnson] pleaded guilty. Indeed, prior to
[Johnson]’s guilty plea, Mr. Durdines had not inter-
viewed [Johnson] about the charges and enhance-
ments alleged against him, had not discussed the
facts of [Johnson’s] case or the alleged priors with
anyone in the district attorney’s office, had done
absolutely no investigation into [Johnson’s] prior
convictions, and had not done any legal research on
possible sentencing options. . . Rather, Mr. Durdines
blindly and blithely accepted the accuracy of the sen-
tence enhancements alleged against [Johnson] in the
first amended information.
[3] As a result of this litany of shortcomings, the Magis-
trate Judge determined that “Mr. Durdines did not, and could
not, competently advise petitioner about the merits of the Var-
gas offer.” While we agree with this conclusion, it does not
go far enough. Durdines’s failure to provide any of the requi-
site assistance to Johnson regarding the charges and enhance-
JOHNSON v. URIBE 7411
ments contained in the First Amended Information rendered
Durdines’s assistance ineffective not only during Johnson’s
negotiation and acceptance of the Vargas plea, but also for the
entire plea negotiation stage, from the filing of the First
Amended Information onward. To be constitutionally suffi-
cient, therefore, the remedy must account for that period of
ineffective assistance as well. Chioino, 581 F.3d at 1184.
Uribe rests his argument for affirming the remedy on the
additional ruling by the district court that, despite defense
counsel’s ineffectiveness, “it is clear that [Johnson] would
have accepted the People’s offer of the Vargas waiver had his
defense counsel provided effective assistance and made sure
the statutory maximum was properly calculated at less than
the term [Johnson] accepted as part of his guilty plea.” The
court made this determination based on the Magistrate
Judge’s factual findings that Johnson: (i) “understood that the
offer of the Vargas waiver required him to serve the maxi-
mum sentence on all of the charges and enhancements alleged
against him . . . if he did not comply with the conditions of
his release,” and (ii) that Johnson entered into the Vargas
waiver with that full knowledge “so he could be released on
his own recognizance in time to attend the birth of his child.”
[4] In the report and recommendation, the Magistrate
Judge stated that “[g]enerally, this means that a defendant
who has entered into a plea bargain contemplating an illegal
sentence may withdraw his guilty plea.” Johnson v. Uribe,
No. EDCV 10-0164-GW(RC), 2010 U.S. Dist. LEXIS
140578, at *53 (C.D. Cal. Nov. 12, 2010) (citing Smith v.
United States, 321 F.2d 954, 955-56 (9th Cir. 1963); United
States v. Greatwalker, 285 F.3d 727, 730 (8th Cir. 2002)).
Because the Magistrate Judge determined that Johnson would
have accepted the government’s plea offer with the Vargas
waiver even with effective counsel, however, she recom-
mended granting the petition subject only to lawful resentenc-
ing. We find that this decision, adopted by the district court,
was an abuse of discretion.
7412 JOHNSON v. URIBE
[5] It is well-established that “in some situations it may be
that resentencing alone will not be full redress for the consti-
tutional injury.” Lafler, 132 S. Ct. at 1389. This is one such
situation. The Sixth Amendment violation here caused the
entire plea negotiation process between Johnson and the pros-
ecution to be conducted based on an erroneous sentencing cal-
culation, weighted against Johnson. As a result, he is entitled
to be returned to that pre-plea stage and proceed under the
correctly-calculated sentencing range.
Durdines’s failure to identify and correct the First
Amended Information’s erroneous addition of three of John-
son’s prior prison terms for enhancement under Cal. Penal
Code § 667.5(b) affected more than just the sentence imposed
pursuant to the final plea agreement. The inaccurate enhance-
ments fundamentally altered the bargaining position of the
two parties for the entire plea negotiation period, which began
as soon as the First Amended Information was filed against
Johnson on May 26, 2006. Consequently, in the period lead-
ing up to the September 8, 2006 pretrial hearing, the govern-
ment extended plea offers to Johnson which were most likely
less desirable than they would have been had the erroneous
enhancements been removed.
Had Johnson’s assistance of counsel been constitutionally
adequate, his attorney would have duly objected to the errone-
ous calculation of three additional enhancements at the outset,
and the government would have been negotiating from a
“weaker,” and certainly different, prospective sentencing
position. A correct calculation, therefore, could have resulted
in more favorable plea offers for Johnson prior to September
8, 2006. The government extended Johnson at least one plea
offer under the erroneously-calculated First Amended Infor-
mation during the time leading up to the Vargas plea. Johnson
rejected those offers, but he may have accepted a more favor-
able one, for example, before reaching the point where it
became necessary for him to enter into the Vargas plea.
JOHNSON v. URIBE 7413
The appropriate remedy here—and the only remedy that
places Johnson, with certainty, “back in the position he would
have been in if the Sixth Amendment violation never
occurred,” Chioino, 581 F.3d at 1184—is to return Johnson to
the pre-plea stage of the proceedings. Johnson must then be
permitted to “bargain” from the position he would have been
in had his counsel correctly calculated the legal maximum
sentence and valid sentencing enhancements. Unlike the dis-
trict court’s half-measure of simply re-sentencing him, the
only way to ensure Johnson is not prejudiced by the Sixth
Amendment violation is to grant the writ of habeas corpus
subject to the state court vacating Johnson’s guilty plea,
which was entered with the “taint” of ineffective assistance of
counsel. See Padilla v. Kentucky, 130 S. Ct. 1473, 1485
(2010) (describing the “[t]he nature of relief secured by a suc-
cessful collateral [habeas] challenge to a guilty plea” as being
“an opportunity to withdraw the plea”).
Although the district court found that Johnson would still
have entered into the Vargas waiver when it was offered, we
cannot properly determine whether, with effective assistance
of counsel, Johnson would have even reached that point in the
proceedings. It is impossible for us to know how the earlier
stages of the plea negotiation process might have progressed
had Durdines rendered effective counsel from the outset by
correctly evaluating the charges against Johnson. Where, as
here, it is mere speculation to assume that the plea negotia-
tions would have progressed in a similar fashion with compe-
tent counsel, we cannot allow the defendant to be prejudiced
by that uncertainty. See United States v. Blaylock, 20 F.3d
1458, 1469 (9th Cir. 1994) (“The Sixth Amendment mandates
that the State [or the government] bear the risk of constitu-
tionally deficient assistance of counsel.”) (quoting Kimmel-
man v. Morrison, 477 U.S. 365 (1986)).
[6] Contrary to the assertion of Uribe, we are not second-
guessing the evidentiary findings of the district court by
vacating the remedy and ordering Johnson released, unless the
7414 JOHNSON v. URIBE
State court vacates Johnson’s guilty plea. We merely replace
the remedy, which was inadequate in light of the court’s find-
ings. The district court’s remedy was contrary to the estab-
lished general principles for remedying a Sixth Amendment
violation of ineffective assistance of counsel occurring during
the plea negotiation stage, and furthermore, it failed fully to
redress the constitutional error in this particular case.
IV. CONCLUSION
We AFFIRM the district court’s grant of Johnson’s habeas
petition but VACATE the district court’s remedy. The district
court shall grant a conditional writ of habeas corpus, subject
to the state court vacating Johnson’s conviction and granting
him a new trial.