Kirk Rishor v. Bob Ferguson, 822 F.3d 482

Background

In 2004 Kirk Rishor waived counsel, represented himself (with standby counsel) at trial and was convicted of unlawful firearm possession and of second-degree assault as a lesser-included offense; the jury impliedly acquitted him of first-degree assault.
The Washington Court of Appeals reversed the second-degree assault conviction for erroneous jury instructions and remanded for retrial on that charge.
On remand Rishor again proceeded pro se (requested standby counsel Thomas Fryer); the State initially charged first-degree assault but later filed an amended information charging second-degree assault without a firearm enhancement, to which Rishor pleaded guilty and received an 84-month sentence concurrent with an existing sentence.
Rishor pursued state post-conviction relief (personal restraint petition) which was denied; the Washington Supreme Court found his original Faretta waiver valid, that he was ready to proceed pro se on remand, and that his plea was voluntary.
Rishor filed a federal habeas petition raising (inter alia) that he did not validly waive counsel on remand and that recharging him with first-degree assault on remand violated double jeopardy; the district court initially denied relief but later, on reconsideration, granted habeas relief on both waiver and double jeopardy grounds.
The Ninth Circuit reversed: it held the district court abused its discretion by granting reconsideration and that the Washington Supreme Court’s decisions on waiver and on voluntariness of the plea (which foreclosed the double jeopardy attack) were not unreasonable under AEDPA.

Issues

Issue	Plaintiff's Argument (Rishor)	Defendant's Argument (State)	Held
Whether a Rule 59(e) motion that raises new claims in a habeas case is subject to AEDPA’s second-or-successive restrictions	Rishor contended his timely motion for reconsideration raised existing claims and was properly considered by the district court	The State argued improperly raised new claims would trigger AEDPA and require court-of-appeals authorization	Court: Rule 59(e) motions filed within 28 days that raise entirely new claims are second-or-successive and subject to §2244(b); but timely motions correcting manifest error on previously raised claims are not
Whether Rishor’s waiver of counsel on remand was invalid under Faretta/Tovar	Rishor argued the trial court failed to conduct a second formal Faretta colloquy on remand and thus his waiver was not knowing/valid	State argued Rishor had validly waived counsel initially, reaffirmed his pro se status on remand, sought standby counsel, and the Washington Supreme Court reasonably applied Supreme Court precedent	Court: Washington Supreme Court’s ruling was not an unreasonable application of clearly established federal law under AEDPA; district court erred to the contrary
Whether the State violated the Double Jeopardy Clause by recharging first-degree assault on remand after an implied acquittal	Rishor argued refiling first-degree assault violated double jeopardy and tainted plea negotiations	State argued the plea to second-degree assault was voluntary; moreover, a valid guilty plea forecloses collateral attacks on prior constitutional errors	Court: Even assuming double jeopardy issue existed, Rishor’s knowing and voluntary guilty plea (as determined by state court) barred collateral double jeopardy relief under Tollett/Broce; district court erred by not deferring to state-court factual finding
Whether the district court properly granted habeas relief on reconsideration	Rishor maintained reconsideration correctly identified errors in state adjudication of waiver and double jeopardy claims	State maintained district court abused discretion, failed to apply AEDPA deference, and misapplied precedent	Court: District court abused its discretion and misapplied AEDPA; judgment granting habeas relief reversed and remanded to reinstate denial of habeas relief

Key Cases Cited

Faretta v. California, 422 U.S. 806 (1975) (defendant has Sixth Amendment right to represent himself; waiver must be knowing, voluntary, and intelligent)
Iowa v. Tovar, 541 U.S. 77 (2004) (waiver of counsel must be knowing and intelligent; no fixed script required; defendant bears burden on collateral attack)
Gonzalez v. Crosby, 545 U.S. 524 (2005) (limits on using Rule 60(b) to present new habeas claims; focus on substance over label)
Green v. United States, 355 U.S. 184 (1957) (acquittal bars retrial on same offense under Double Jeopardy Clause)
Tollett v. Henderson, 411 U.S. 258 (1973) (guilty plea waives non-jurisdictional antecedent constitutional claims)
United States v. Broce, 488 U.S. 563 (1989) (guilty plea forecloses later collateral attacks on antecedent constitutional defects when plea is voluntary)
Renico v. Lett, 559 U.S. 766 (2010) (AEDPA deference requires federal courts to uphold reasonable state-court decisions)
Cullen v. Pinholster, 563 U.S. 170 (2011) (AEDPA sets a highly deferential standard for federal review of state-court rulings)