                  FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

MAXWELL HOFFMAN,                      
             Petitioner-Appellant,
                                            No. 02-99004
               v.
                                              D.C. No.
ARVON J. ARAVE, Warden, Idaho             CV-94-00200-S-
Maximum Security Institution,                   BLW
Department of Correction, State of
                                              ORDER
Idaho,
             Respondent-Appellee.
                                      
                    Filed March 6, 2007

     Before: Harry Pregerson, William A. Fletcher, and
             Ronald M. Gould, Circuit Judges.

                           Order;
                    Dissent by Judge Bea



                          ORDER

   The panel, as constituted above, have voted unanimously to
deny both the petition for rehearing and the petition for
rehearing en banc. A judge of the court requested a vote on
whether to rehear the case en banc, but the request failed to
receive a majority of votes of the active judges in favor of en
banc rehearing. The petition for rehearing and the petition for
rehearing en banc are denied.



                             2451
2452                       HOFFMAN v. ARAVE
BEA,      Circuit   Judge, with     whom      KOZINSKI,
O’SCANNLAIN, KLEINFELD, TALLMAN, BYBEE and
CALLAHAN, Circuit Judges, join, dissenting from the denial
of rehearing en banc:

   The panel’s decision has effectively written out of the law
the requirement that prejudice be pleaded and proved to meet
the test for ineffective assistance of counsel. See Strickland v.
Washington, 466 U.S. 668, 687 (1984); Turner v. Calderon,
281 F.3d 851, 879 (9th Cir. 2002). In fact, Hoffman alleged
only that had his ineffective counsel made Hoffman compe-
tent, Hoffman would then have been able to assess his posi-
tion and then decide whether to take the plea offer.1 He did
not allege that if competent and if counsel had advised him to
take the plea offer, he would have done so.

   Further, in what may be a new high in self-effacing candor,
the panel holds that it is ineffective assistance of counsel to
rely on Ninth Circuit precedent with respect of federal consti-
tutional law applicable in states located in this Circuit. There-
fore, I respectfully dissent from the order denying rehearing
en banc.

   Hoffman and an associate, Ron Wages, killed Denise Wil-
liams, a police informant, after Williams made a controlled
drug buy which resulted in the arrest of Richard Holmes.
State v. Hoffman, 851 P.2d 934, 935-36 (Idaho 1993). On
Holmes’s orders, Hoffman and Wages kidnaped Williams and
drove her to a cave outside Silver City, Idaho. Id. at 936.
  1
   Hoffman alleged in his habeas petition:
      Had Petitioner been properly advised regarding his exposure to
      the death penalty and had defense counsel fully developed and
      understood Petitioner’s mental state including his brain damage,
      dyslexia, mental illness including psychosis, and mental retarda-
      tion, counsel could have secured to Petitioner adequate care and
      treatment that would have rendered Petitioner sufficiently compe-
      tent to determine to take advantage of the plea bargain offered
      and plead guilty.
                       HOFFMAN v. ARAVE                      2453
      Hoffman took Williams into the cave and slashed her
      throat with a knife. As Hoffman was returning to the
      vehicle, Wages spotted Williams crawling up an
      embankment near the cave. Wages then pursued
      Williams and stabbed her under the arm with Hoff-
      man’s knife. Thinking Williams was dead, both men
      buried her with rocks. It would later be determined
      that the cause of death was a crushing blow by a
      rock to William’s head.

Id.

   Hoffman was charged with first degree murder and offered
a plea bargain: if Hoffman pleaded guilty to murder, the state
would not seek the death penalty. Hoffman v. Arave, 455 F.3d
926, 929 (9th Cir. 2006). However, Hoffman’s attorney, Wil-
liam Wellman, advised Hoffman to reject the plea. Id. This
court had held Arizona’s death penalty scheme unconstitu-
tional because in Arizona, as in Idaho, the death sentence was
imposed by a judge, not a jury. Adamson v. Ricketts, 865 F.2d
1011, 1023-28 (9th Cir. 1988) (en banc), abrogated by Walton
v. Arizona, 497 U.S. 639 (1990). Wellman thought it was only
a matter of time before Idaho’s death penalty scheme would
also be held unconstitutional. Hoffman, 455 F.3d at 929. Hoff-
man let the plea offer lapse, and was tried and sentenced to
death. Id. at 930. A year after the sentence was imposed, the
Supreme Court upheld Arizona’s judge-sentencing death pen-
alty scheme and implicitly overruled Adamson. Walton, 497
U.S. at 647-49.

  The panel held Wellman provided ineffective assistance of
counsel when he advised Hoffman to reject the plea agree-
ment. Hoffman, 455 F.3d at 939-41. Ineffective assistance of
counsel requires both a showing that counsel’s performance
was deficient and that such deficient performance caused
defendant prejudice. Strickland, 466 U.S. at 687. The panel
found that Wellman’s performance was deficient because,
while he was correct that Idaho’s death penalty scheme was
2454                      HOFFMAN v. ARAVE
“materially indistinguishable” from Arizona’s, Wellman did
not discover that the Supreme Court of Arizona consistently
upheld Arizona’s death penalty scheme. Hoffman, 455 F.3d at
940. But Adamson was good law while the plea bargain was
available. The Idaho Supreme Court had not rejected our
Adamson position, and, in a pre-AEDPA world, our decision
would have made federal habeas relief for Hoffman likely.2
There is no evidence that had Wellman researched Arizona
and Idaho state court rulings he would still not have relied on
our Adamson decision. The panel opinion rather astonishingly
holds that it is deficient performance for an attorney to rely
on the decisions of this court with regard to federal constitu-
tional rights in states located in the Ninth Circuit.

   By holding that failing correctly to predict future court
decisions or trial court actions constitutes deficient perfor-
mance, the panel is opening this court up to a cavalcade of
challenges. Every defendant whose attorney reasonably pre-
dicted a likely sentence which turned out to be wrong, or who
erroneously predicted the direction of the court’s constitu-
tional holdings, has a claim for deficient performance. And
yet, how often does an attorney give advice that does not in
some way predict future court action?

   After erroneously finding deficient performance, and in the
absence of any allegation of prejudice, the panel finds preju-
dice because “had Wellman fully presented Hoffman’s
options and told Hoffman that he was giving up very little in
exchange for the security of the death penalty being off the
table, Hoffman probably would have gone along with Well-
man’s suggestion and would have accepted the plea agree-
  2
    Of course, Wellman’s advice ultimately proved to be correct. Only his
timing was wrong. The Supreme Court reversed Walton in 2002 in Ring
v. Arizona, 536 U.S. 584 (2002), ruling that a jury must find aggravating
circumstances necessary for the imposition of the death penalty. However,
Hoffman is not helped by Ring; it is not retroactive. Schriro v. Summerlin,
542 U.S. 348, 358 (2004).
                       HOFFMAN v. ARAVE                     2455
ment.” Hoffman, 455 F.3d at 942 (emphasis added). The panel
also noted that “Hoffman’s desire to have the State prove its
case was not a principled stand against accepting a plea agree-
ment.” Id.

   The panel opinion supplants the requirement of pleading
and proof of prejudice, i.e., that but for Wellman’s incorrect
advice he would have pleaded to a life sentence, by creating
a new vehicle to establish prejudice: that defendants’ rejec-
tions of plea agreements are invalid unless the state proves
defendant based his rejection on a “principled stand.” The
panel did not favor us with any authority for this invention,
nor with a description of what principles erect an adequate
foundation to effect a “principled stand.” Does the “principle”
upon which defendant “stands” in his rejection have to be
rationally probable, vaguely possible, or can it be simple defi-
ant disdain for the authorities?

   Up to now, under our jurisprudence, Hoffman would have
to demonstrate that “but for counsel’s errors, he would have
pleaded guilty and would not have insisted on going to trial.”
Turner, 281 F.3d at 879 (emphasis added). In fact, “[w]hile a
guilty plea may be tactically advantageous for the defendant,
the plea is not simply a strategic choice; it is itself a convic-
tion, and the high stakes for the defendant require the utmost
solicitude.” Florida v. Nixon, 543 U.S. 175, 187 (2004) (inter-
nal quotation marks and citations omitted). Requiring a “prin-
cipled stand” to validate a refusal to enter a plea agreement
hardly demonstrates “the utmost solicitude” for a defendant’s
choice. To the contrary, it creates a barrier to effective plead-
ing out.

   The panel relies on Hoffman’s “compliant personality” and
tendency to defer to Wellman throughout the trial to establish
that “Hoffman probably would have gone along with Well-
man’s suggestion” to accept the plea agreement. Hoffman,
455 F.3d at 942. However, Hill v. Lockhart, 474 U.S. 52,
59-60 (1985), requires more: (1) an allegation in the habeas
2456                   HOFFMAN v. ARAVE
petition that but for counsel’s ineffective assistance, petitioner
would have pleaded guilty and (2) proof—not just post-hoc
appellate court speculation—that the petitioner indeed would
have accepted the plea agreement had the attorney correctly
advised the petitioner.

   In Hill, the Supreme Court affirmed the district court’s
denial without an evidentiary hearing of Hill’s habeas petition
because Hill did not satisfy the “prejudice” requirement for
ineffective assistance of counsel claims. Hill claimed ineffec-
tive assistance of counsel because his attorney informed Hill
he would be required to serve only one-third of his sentence
before becoming eligible for parole. Id. at 54-55. In fact, as
a second offender, Hill was required to serve at least one-half
of his sentence before becoming eligible for parole. Id. at 55.
The Court held that Hill “failed to allege the kind of ‘preju-
dice’ necessary to satisfy the second half of the Strickland v.
Washington test.” Id. at 60.

    Petitioner did not allege in his habeas petition that,
    had counsel correctly informed him about his parole
    eligibility date, he would have pleaded not guilty and
    insisted on going to trial. He alleged no special cir-
    cumstances that might support the conclusion that he
    placed particular emphasis on his parole eligibility in
    deciding whether or not to plead guilty.

Id. The Court concluded, “[b]ecause petitioner in this case
failed to allege the kind of ‘prejudice’ necessary to satisfy the
second half of the Strickland v. Washington test, the District
Court did not err in declining to hold a hearing on petitioner’s
ineffective assistance of counsel claim.” Id.

  In this case, Hoffman did not meet the Hill requirement that
he allege that he would have accepted the plea agreement if
Wellman had “properly” advised him as to the law and the
judge’s propensity on death sentences. In fact, were the alle-
gations of Hoffman’s habeas petition taken as true to test their
                          HOFFMAN v. ARAVE                          2457
legal sufficiency, it remains unclear whether Wellman’s alleg-
edly deficient advice actually caused Hoffman to turn down
the plea offer. First, Hoffman alleged that he “proceeded to
trial due to the advice of trial counsel that he would not be
executed regardless of the outcome.” But then Hoffman
alleges:

      Had Petitioner been properly advised regarding his
      exposure to the death penalty and had defense coun-
      sel fully developed and understood Petitioner’s men-
      tal state including his brain damage, dyslexia, mental
      illness including psychosis, and mental retardation,
      counsel could have secured to Petitioner adequate
      care and treatment that would have rendered Peti-
      tioner sufficiently competent to determine to take
      advantage of the plea bargain offered and plead
      guilty.

Note that Hoffman does not allege that had he become com-
petent through adequate care and treatment, he would have
taken the plea offer. All he alleges is that, if so cured, he
would have been “sufficiently competent to determine”
whether to take the plea.

   It appears that Hoffman has here pleaded himself into a cor-
ner.3 Even if he had been given “good” advice by Wellman,
Hoffman alleges he wasn’t competent to take it. And of one
thing we can be sure: Wellman did not render ineffective
assistance by failing to challenge Hoffman’s competency:
“Hoffman has not proved an ineffective assistance claim
based on his counsels’ failure to challenge his competency
because there is not a reasonable probability that Hoffman
would have been found incompetent.” Hoffman, 455 F.3d at
  3
   A petitioner can plead inconsistent theories. But here Hoffman has not
done so. He never pleads that if he had become competent, he would have
taken the plea, nor that, in the alternative, he was competent to take the
plea.
2458                   HOFFMAN v. ARAVE
938. So, there is no causal connection between Wellman’s
supposedly ineffective assistance in predicting constitutional
law and Hoffman’s refusal to plead guilty. Hoffman claims he
was incompetent to follow Wellman’s advice, let alone that he
could have rejected it and pleaded guilty.

   This pleading has a further effect. Before pleading he was
incompetent to take the plea, through counsel’s ineffective
assistance, Hoffman had alleged that he had rejected the plea
agreement “due to the advice of trial counsel.” Hence, he was
(1) competent to reject the plea but (2) not competent to take
the plea, all during the same ten-day period in February 1988.

  Moreover, Hoffman did not offer any proof that he was
prejudiced by Wellman’s advice. Hoffman could have offered
an affidavit, deposition testimony or evidentiary hearing testi-
mony that he would have taken the guilty plea had he been
given the correct advice. He did not do so. If the bar for
defective performance is as low as the panel sets it, a showing
—that is, pleading and proof—of prejudice is absolutely
required lest we be forced to find ineffective assistance of
counsel in every case where an attorney makes a prediction
about law or judges and the prediction turns sour.

   En banc rehearing was necessary because not only does the
panel find deficient performance in an attorney’s failure cor-
rectly to predict future court decisions (the Crystal Ball Rule),
the panel finds prejudice in a mere supposition by this court
that the defendant would have taken the plea had his attorney
guessed correctly. Accordingly, I respectfully dissent from the
denial of rehearing en banc.
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