                     FOR PUBLICATION

     UNITED STATES COURT OF APPEALS
          FOR THE NINTH CIRCUIT


 KENNARD GERALD JOHNSON ,                        No. 11-55187
           Petitioner - Appellant,
                                                  D.C. No.
                    v.                        10-CV-00164-GW

 DOMINGO URIBE ,                                    ORDER
           Defendant - Appellee.


                    Filed November 5, 2012

  Before: Andrew J. Kleinfeld and Milan D. Smith, Jr.,
 Circuit Judges, and Algenon L. Marbley, District Judge.*

                            Order;
               Dissent by Chief Judge Kozinski;
                    Dissent by Judge Bea




 *
   The Honorable Algenon L. Marbley, United States District Judge for
the Southern District of Ohio, sitting by designation.
2                       JOHNSON V . URIBE

                           SUMMARY**


                          Habeas Corpus

    The panel amended its opinion filed on June 22, 2012 by
adding a footnote, and denied a petition for rehearing and for
rehearing en banc.

    In the original opinion, the panel affirmed the district
court’s grant of a 28 U.S.C. § 2254 habeas corpus petition due
to ineffective assistance of counsel for failure to properly
advise petitioner that he was pleading guilty to an unlawful
sentence, but vacated the remedy. The panel held that
petitioner was entitled to be returned to the position he would
have been in if the Sixth Amendment violation never
occurred. Because counsel’s ineffective assistance affected
the entire plea negotiation stage of the proceedings, the
district court’s decision to grant the writ subject to the state
court re-sentencing petitioner failed adequately to remedy the
constitutional violation. The panel affirmed the grant of
relief, but vacated the district court’s remedy and instead
remanded for a conditional writ to issue subject to the state
court vacating the conviction and granting a new trial.

    Chief Judge Kozinski dissented from the denial of
rehearing en banc, joined by Judges O’Scannlain, Tallman,
Bybee, Callahan, Bea and Ikuta, because the panel failed to
give proper deference to the district court’s exercise of
discretion in selecting a habeas remedy. Chief Judge


    **
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                     JOHNSON V . URIBE                        3

Kozinski explained that the panel mistakenly believed that the
magistrate judge found counsel ineffective before, during and
after the plea negotiation state, as well as at the time Johnson
entered his guilty plea; the district court never found
ineffective assistance at the negotiation stage but only as to
the miscalculation of the sentence. The Chief Judge further
explained that there could not be prejudice during the plea
negotiations because Johnson never alleged any, and that
Johnson himself asked the district court for resentencing.
Moreover, the Chief Judge observed that Johnson never
exhausted a claim of pre-plea ineffective assistance, so the
district court could not grant relief on it. Chief Judge
Kozinski concluded that the panel made a series of errors, and
the full court should have taken this case en banc.

    Judge Bea dissented from the denial of rehearing en banc,
joined by Chief Judge Kozinski and Judges O’Scannlain,
Callahan and Ikuta. Judge Bea agreed with Chief Judge
Kozinski that the panel abused its own discretion by failing to
give the correct level of deference to trial courts. He observed
that this failure to give proper deference is a recurrent
problem.


                           ORDER

   The opinion filed June 22, 2012, and published at
682 F.3d 1238, is amended as follows:

    On page 1243, left column, line 14, add the following
footnote after the citation to United States v. Ressam: <In
United States v. Hinkson, 585 F.3d 1247 (9th Cir. 2009) (en
banc), we adopted a two-part test to more precisely and
4                     JOHNSON V . URIBE

objectively apply our review for abuse of discretion. First we
“consider whether the district court identified the correct legal
standard for decision of the issue before it. Second, the test
then requires us to determine whether the district court’s
findings of fact, and its application of those findings of fact to
the correct legal standard, were illogical, implausible, or
without support in inferences that may be drawn from facts in
the record.” Hinkson, 585 F.3d at 1251.>

    This footnote shall be designated as footnote 5, and the
subsequent footnote, on page 1243, left column, line 35, shall
be designated as footnote 6.

    With this amendment, the panel has voted unanimously to
deny the petition for rehearing. Judge M. Smith voted to deny
the petition for rehearing en banc, and Judges Kleinfeld and
Marbley so recommend.

    A judge of this court called for this case to be reheard en
banc. A vote was taken, and a majority of the active judges of
the court did not vote for a rehearing en banc. Fed. R. App.
P. 35(f).

    The petition for panel rehearing and rehearing en banc is
therefore DENIED. No further petitions for panel or en banc
rehearing will be entertained in this case.


Chief Judge KOZINSKI, with whom Judges
O’SCANNLAIN, TALLMAN, BYBEE, CALLAHAN, BEA
and IKUTA join, dissenting from the order denying the
petition for rehearing en banc:
                      JOHNSON V . URIBE                          5

    There’s a very good reason appellate panels must defer to
the broad discretion of district courts in fashioning habeas
remedies, a reason other than that the Supreme Court has said
so: These remedies call for complex, fact-based work with
numerous pleadings and balancing of multiple competing
interests. When an appellate panel second-guesses the district
court’s judgment, it’s liable to get things wrong, sometimes
very wrong. Don’t believe me? Read on.

                           *    *    *

    Locked up awaiting trial, Kennard Johnson wanted a way
out so he could see the birth of his son. Report and
Recommendation of a U.S. Mag. Judge 15, Johnson v. Uribe,
No. EDCV 10-0164-GW(RC) (C.D. Cal. Nov. 12, 2010). At
Johnson’s urging, counsel negotiated a deal: Johnson would
plead guilty to all charges and enhancements and receive the
maximum sentence of fourteen years and four months, but
he’d be furloughed prior to the start of the sentence so he
could attend the birth. Id. at 15–16. But if Johnson adhered
to the conditions of his release, the prosecutor would agree to
a lower sentence of six years. Id. at 16. Johnson took the
deal in time to see his son’s birth, id. at 18, but he violated his
conditions of release, id. at 19. That triggered the higher
sentence—a sentence that turned out to be three years longer
than permitted by law. Id. at 35. On federal habeas, Johnson
claimed that ineffective assistance of counsel had caused him
to accept the miscalculated plea. Id. at 4. The district court
agreed and ordered Johnson resentenced to a legal term.
Order Adopting Report and Recommendation 2, Johnson v.
Uribe, No. ED CV 10-164-GW(JEM) (C.D. Cal. Jan. 25,
2011). The state is willing to accept the reduced sentence.
6                    JOHNSON V . URIBE

    We have been told that district courts have broad
discretion in selecting habeas remedies, Hilton v. Braunskill,
481 U.S. 770, 775 (1987), so that should have been the end of
it. But a panel of our court knows better; it holds that the
district court abused its discretion by ordering mere
resentencing. Johnson v. Uribe, 682 F.3d 1238, 1245
(9th Cir. 2012). In the panel’s estimation, nothing short of
vacating Johnson’s guilty plea will do. Id. at 1246. Not only
does this make mincemeat of the Supreme Court’s firm
instruction that the choice of habeas remedy rests with the
district court; it also tramples several established procedural
rules, mucking up our law on exhaustion of remedies and
amendment of habeas petitions. There certainly was abuse of
discretion in this case, but it was committed by our panel, not
the district court.

    1. The panel’s conclusion that vacating the conviction
was the only appropriate remedy rests on the mistaken belief
that the magistrate judge found ineffective assistance of
counsel (IAC) “before, during, and after the plea negotiation
stage, as well as at the time Johnson entered his
unconstitutional guilty plea.” Id. at 1244 (emphasis added).
According to the panel, the district court’s remedy is defective
because it addresses only the ineffectiveness relating to the
plea itself: “To be constitutionally sufficient,” the panel
holds, “the remedy must account for that [pre-sentencing]
period of ineffective assistance as well.” Id. at 1245. But the
district court never found IAC at the negotiation stage; it
found ineffective assistance only as to the miscalculation of
the sentence. See Report and Recommendation of a U.S.
Mag. Judge 17, 18, 35, 36, 41–42, Johnson v. Uribe, No.
EDCV 10-0164-GW(RC) (C.D. Cal. Nov. 12, 2010).
                     JOHNSON V . URIBE                       7

    In alluding to additional ineffectiveness findings, the
panel is either making its own findings or hopelessly
confused. While the district court noted counsel’s lackluster
performance throughout his representation of Johnson, this is
not enough to establish IAC in the constitutional sense. For
that, Johnson also needs a finding that the poor performance
prejudiced him. Strickland v. Washington, 466 U.S. 668, 687
(1984). And the district court found prejudice only with
respect to counsel’s errors relating to the miscalculated plea.
That prejudice was remedied by resentencing. Without a
finding that counsel’s other missteps prejudiced Johnson,
there is no IAC in need of correction.

    2. Nor could there be, because Johnson never alleged
ineffectiveness during the plea negotiations. Johnson’s
federal habeas petition focused narrowly on the illegal
sentence: First, he claimed counsel “fail[ed] to object to
imposition of a sentence clearly higher than authorized by law
and to convictions unauthorized by law.” Pet. for Writ of
Habeas Corpus 5, Johnson v. Uribe, No. EDCV 10-00164-
GW(RC) (C.D. Cal. Feb. 2, 2010). Second, he claimed
counsel “fail[ed] to advise me that the plea agreement
required a plea to illegal convictions and a sentence clearly
higher than authorized by law.” Id.

    Johnson did not move to amend his habeas petition to
claim he suffered IAC because his lawyer was an
insufficiently crafty negotiator. The state was given no
opportunity to address any such claim. It makes a mockery of
orderly procedure and the statutory limits imposed on federal
courts in considering habeas petitions to let Johnson amend
his petition retroactively on appeal. This is a wide-open door
8                     JOHNSON V . URIBE

through which many a habeas petitioner will try to walk out
of prison.

    3. It’s actually even worse: Johnson himself asked the
district court for resentencing. In Johnson’s district court
traverse, he argued that the ineffective assistance he received
“warrant[ed] reversal of the convictions, remanding of the
unlawful sentence, and resentencing him approprietly [sic]
under the law.” Traverse to Resp’t’s Answer to the Pet. for
Writ of Habeas Corpus 7, Johnson v. Uribe, No. EDCV 10-
164-GW(RC) (C.D. Cal. Jun. 7, 2010). A page later, he
claimed that “[t]he unlawful sentence should be vacated, the
plea rescinded, and the appropriate sentence imposed.” Id. at
8. After he was given a lawyer, Johnson asked for vacatur of
the guilty plea but continued to argue that, “[a]lternatively, the
Court should vacate [his] sentence and return his case for
resentencing.” Pet’r’s Post-Hr’g Br. in Supp. of Pet. for Writ
of Habeas Corpus 13, Johnson v. Uribe, No. EDCV 10-164-
GW(RCx) (C.D. Cal. Oct. 27, 2010). It wasn’t until the
magistrate judge recommended granting relief and ordering
resentencing that Johnson first claimed that resentencing is
insufficient.     Pet’r’s Objections to the Report and
Recommendation 13–15, Johnson v. Uribe, No. EDCV 10-
164-GW(RCx) (C.D. Cal. Nov. 29, 2010). How could the
district court have abused its discretion by giving Johnson the
relief he asked for?

    4. Even if the panel could sidestep these problems,
there’s still an insurmountable hurdle to finding that
Johnson’s lawyer committed IAC at the pre-plea stages of the
proceedings: Johnson never exhausted that claim, so the
district court couldn’t grant relief on it. See 28 U.S.C.
§ 2254(b)(1)(A). The opinion of the California Court of
                      JOHNSON V . URIBE                        9

Appeal, the last reasoned decision, shows that Johnson raised
four grounds of ineffective assistance, none of which alleged
ineffectiveness “before, during, and after the plea negotiation
stage.” The first three alleged counsel was ineffective in
signing off on a guilty plea that impermissibly double-counted
various charges. People v. Johnson, No. E045514, 2009 WL
1365764, at *2 (Cal. Ct. App. June 17, 2009). The fourth was
the one on which the district court granted relief: Counsel
“concurred in the plea agreement and allowed defendant to be
sentenced” based on the miscalculated plea. Id. All other
claims are unexhausted, thus precluding the district court
from considering whether there was ineffective assistance of
counsel at any stage of the proceedings prior to sentencing.
AEDPA bars the district court from granting the type of relief
the panel holds to be mandatory. In the Ninth Circuit, it’s
now an abuse of discretion to comply with AEDPA.

     5. Finally, the panel shows a total lack of interest in what
the Supreme Court has said about district courts’ discretion in
fashioning habeas remedies in general, and IAC remedies in
particular. The Court has instructed that habeas corpus “is, at
its core, an equitable remedy,” Schlup v. Delo, 513 U.S. 298,
319 (1995), and that district courts possess “broad discretion”
in fashioning remedies “to dispose of habeas corpus matters
as law and justice require,” Hilton, 481 U.S. at 775 (internal
quotation marks omitted). In so doing, the district court must
choose a remedy that is “tailored to the injury suffered from
the constitutional violation” and does “not unnecessarily
infringe on competing interests.” Lafler v. Cooper, 132 S. Ct.
1376, 1388 (2012) (quotation marks omitted). Vacating a
conviction often isn’t appropriate because it imposes
“substantial social costs” on “jurors, witnesses, courts, the
10                   JOHNSON V . URIBE

prosecution, and the defendants.” United States v. Mechanik,
475 U.S. 66, 72 (1986).

    The district court took these admonitions seriously. It
focused its remedy on the constitutional violation it had
found: the lawyer’s acquiescence in an illegal sentence. The
remedy it selected addresses the constitutional violation while
inflicting the minimum costs on society. Because there were
not, and could not have been, any other ineffectiveness
findings, there was nothing else to remedy and thus no reason
to vacate the conviction.

    In concluding that this was an abuse of discretion, the
panel changes the focus from aspects of counsel’s
performance that were found to be ineffective to other aspects
that were not found to be ineffective. “[I]t is mere
speculation to assume that the plea negotiations would have
progressed in a similar fashion with competent counsel,” the
panel writes, holding that it “cannot allow the defendant to be
prejudiced by that uncertainty.” Johnson, 682 F.3d at 1246.
But it is the panel that engages in untethered speculation. The
district court wasn’t asked to find, and couldn’t find, that
Johnson was prejudiced by whatever poor performance
counsel rendered prior to the actual plea. It is this missing
prejudice finding that causes the uncertainty the panel worries
about. Since it was petitioner’s burden to show prejudice, the
risk of that uncertainty must fall on him. The panel thus
shatters yet another ironclad federal habeas rule by holding
that mere suspicion of prejudice requires a habeas remedy.
Prisoners will be dancing in their cells once word of this gets
out.

                          *   *    *
                      JOHNSON V . URIBE                       11

    The panel here made a series of errors that upend our
AEDPA jurisprudence. But the biggest error is the full
court’s failure to go en banc to rein in this renegade opinion.
The en banc process exists so we can fix our own messes
before they get fixed for us. We should have taken advantage
of that opportunity.



Judge BEA, dissenting from the order denying the petition for
rehearing en banc, joined by Chief Judge KOZINSKI, and
Judges O’SCANNLAIN, CALLAHAN, AND IKUTA:

    Chief Judge Kozinski couldn’t be more right that the
panel in this case abused its own discretion by failing to give
the correct level of deference to trial courts. Failure to
properly defer to district—and state—courts is a recurrent
problem. See, e.g., Moore v. Czerniak, 574 F.3d 1092 (9th
Cir. 2009), rev’d by, Premo v. Moore, 131 S. Ct. 733 (2011);
Hoffman v. Arave, 455 F.3d 926 (9th Cir. 2006), rev’d by,
Arave v. Hoffman, 552 U.S. 117 (2008); Collins v. Rice,
365 F.3d 667 (9th Cir. 2004), rev’d by, Rice v. Collins,
546 U.S. 333 (2006).

   This problem is why we went en banc in United States v.
Hinkson, 585 F.3d 1247, 1263 (9th Cir. 2009) (en banc), cert
denied, 131 S. Ct. 2096 (2011), to revise and clarify exactly
what “abuse of discretion” review entails. Hinkson held that,
under abuse of discretion review, this court should not second
guess the district court, so long as the district court’s finding
was within its power to make. We also looked at the many
ambiguous ways the abuse of discretion standard had been
phrased, and went to great lengths to put the standard in more
12                    JOHNSON V . URIBE

objective wording to qualify the clearly subjective “definite
and firm conviction” standard. In the end, we articulated the
following standard for abuse of discretion review:

     [W]e first look to whether the trial court identified
     and applied the correct legal rule to the relief
     requested. Second, we look to whether the trial
     court’s resolution of the motion resulted from a
     factual finding that was illogical, implausible, or
     without support in inferences that may be drawn from
     the facts in the record.

Hinkson, 585 F.3d at 1263. “[O]nly then are we able to have
a ‘definite and firm conviction’ that the district court reached
a conclusion that was a ‘mistake’ or was not among its
‘permissible’ options, and thus that it abused its discretion by
making a clearly erroneous finding of fact.” Id. at 1262.

     Despite the panel’s inclusion of a footnote cite to Hinkson
in its revised opinion, the panel continues to conduct a wishy-
washy, “what I would have done if I were the trial court,” de
novo review instead of actually applying the structured
analysis set forth in Hinkson.

     The factual finding upon which the district court ordered
Johnson to be re-sentenced was its finding that, as part of his
waiver pursuant to People v. Vargas, 223 Cal. App. 3d 1107,
273 Cal. Rptr. 48 (Cal. Ct. App. 1990), Johnson would have
accepted a “bail” of 11 years and 4 months should he not
appear for his sentencing hearing or violate the conditions of
his release. This was a perfectly plausible and logical finding,
supported by the record, given that Johnson had already
                     JOHNSON V . URIBE                       13

agreed to a maximum sentence of 14 years and 4 months as
his “bail.”

    Rather than point out in what respect the trial court’s
factual finding was “illogical, implausible, or without support
in inferences that may be drawn from the facts in the record,”
Hinkson, 585 F.3d at 1263, the panel makes its own finding
that counsel’s ineffectiveness tainted the entire plea
bargaining process and thus the district court’s finding is an
abuse of discretion. But no matter how you look at it,
counsel’s ineffectiveness did not cause Johnson to decide to
fail to appear. And since counsel’s ineffectiveness did not
cause Johnson to accept the sentence if he failed to appear, he
was not prejudiced by it, so the second prong of Strickland v.
Washington, 466 U.S. 668, 687-88, 694 (1984), was not made
out. As the trial court found, because Johnson was
determined to see his child born, he accepted the 14 years and
4 month sentence he thought was the maximum sentence.
And from that fact, the district court inferred that Johnson
would have accepted the 11 years and 4 months sentence that
was the actual maximum to which he could legally be
sentenced. That makes all the sense in the world. In 13 years
as a California state trial court judge, I never met a defendant
who would not accept a lower bail.

    Panels of this court continue to usurp power from the trial
courts, despite our en banc court’s attempt to clarify that
allocation of power. Here, we had another opportunity to
apply that clarification by going en banc, before it became
necessary for the Supreme Court to clarify the abuse of
discretion standard all appellate courts must follow. We
should have taken this case en banc to prevent the usurpation
ourselves.
