961 F.3d 1238
9th Cir.2020Background
- In 2003 the State offered Rose a plea that would dismiss two counts and have Rose plead to assault with a weapon plus a misdemeanor, and would cap a persistent felony offender (PFO) enhancement at 10 years (5 suspended); defense counsel believed the PFO term was illegal under Montana law and did not inform Rose, so the offer was withdrawn and the case went to trial.
- Rose was convicted, sentenced to a lengthy term, and his state direct and post-conviction appeals were denied.
- In federal habeas, the district court granted a conditional writ based on ineffective assistance for failing to convey the plea offer: the State was ordered to reoffer equivalent plea terms by a deadline or Rose would be released; the Ninth Circuit affirmed the conditional-writ remedy on appeal.
- The State reoffered a plea in 2016 with equivalent substantive terms but with a specific sentencing recommendation (30 years with 5 suspended for the felony as a PFO-equivalent) and prepared a final plea that Rose signed; the state trial court rejected the plea and left the conviction intact.
- Rose moved under Fed. R. Civ. P. 70(a) to enforce the conditional writ, arguing the reoffer was not equivalent and seeking immediate release; the district court denied the Rule 70(a) motion and refused a COA; the Ninth Circuit addressed two questions: (1) whether a COA is required to appeal denial of a Rule 70(a) enforcement motion, and (2) whether Rose merits a COA.
- The Ninth Circuit held a COA is required for appeals of Rule 70(a) denials (because such orders "pertain to the district court’s adjudication of the habeas petition"), and denied Rose a COA because he failed to show jurists would debate that the district court did not abuse its discretion in finding the reoffer equivalent.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a COA is required to appeal the denial of a Rule 70(a) motion enforcing a conditional habeas writ | Rose: No COA required because the Rule 70(a) motion only enforces a remedy already decided and does not dispose of habeas merits | Respondents: COA required because denial of enforcement "pertains to the district court’s adjudication of the habeas petition" | COA is required under 28 U.S.C. § 2253(c)(1)(A) for appeals from denials of Rule 70(a) motions enforcing conditional writs |
| Whether the State’s reoffered plea was not "equivalent" to the original offer (sentencing recommendation and added final-agreement terms) | Rose: The 2016 offer’s specific recommended sentence and added supervision/appeal waiver terms materially differed and prevented the same opportunity/result as in 2003 | State/District Ct.: The reoffer was equivalent—the recommended aggregate sentence could be the same and both offers contemplated additional final-plea terms; the original PFO phrasing was legally infirm and the reoffer achieved the same practical sentence | District court did not abuse its discretion in finding the offers equivalent; reasonable jurists would not debate this conclusion |
| Whether Rose made the § 2253(c)(2) substantial‑showing necessary for a COA | Rose: Jurists could debate whether the district court abused its discretion enforcing the conditional writ | Respondents: Rose failed to show the denial was debatable under the abuse‑of‑discretion standard | COA denied: Rose failed to make a substantial showing that the district court abused its discretion |
Key Cases Cited
- United States v. Winkles, 795 F.3d 1134 (9th Cir.) (orders "pertaining to" habeas adjudication require COA)
- Payton v. Davis, 906 F.3d 812 (9th Cir.) (COA required for appeals of certain post‑judgment motions that touch habeas adjudication)
- Harbison v. Bell, 556 U.S. 180 (2009) (COA requirement applies to final orders disposing of habeas merits; narrow ruling on collateral motions)
- Lafler v. Cooper, 566 U.S. 156 (2012) (remedy for deficient counsel causing rejection of plea offers)
- Miller‑El v. Cockrell, 537 U.S. 322 (2003) (COA is a jurisdictional prerequisite)
- Gonzalez v. Crosby, 545 U.S. 524 (2005) (distinguishing bona fide Rule 60 motions from successive habeas petitions)
- Gonzalez v. Thaler, 565 U.S. 134 (2012) (district courts decide COA in the first instance)
- Slack v. McDaniel, 529 U.S. 473 (2000) (two‑part test for COA when the district court’s ruling is procedural)
- Harvest v. Castro, 531 F.3d 737 (9th Cir.) (conditional writs retain district court enforcement jurisdiction; noncompliance requires release)
- Jensen v. Pollard, 924 F.3d 451 (7th Cir.) (Rule 70 enforcement requires district court determination of compliance reviewed for abuse of discretion)
- Gentry v. Deuth, 456 F.3d 687 (6th Cir.) (state compliance with conditional writ ends federal court’s residual jurisdiction; failure requires release)