Remedying the Remedy: Johnson v. Uribe and Determining Prejudice for Sixth Amendment Claims

Abstract

On November 5, 2012, the Ninth Circuit Court of Appeals declined to rehear Kennard G. Johnson’s habeas petition en banc, thus upholding the appellate panel’s decision to vacate his guilty plea for want of effective assistance of counsel, which overturned the district court’s resentencing remedy. The panel worked within the standard of review to establish prejudice during the plea negotiations, which provided not only an appropriate remedy but also a pragmatic framework for lower courts to assess similar claims of ineffective assistance of counsel. In dissent to the denial of rehearing en banc, Chief Judge Alex Kozinski reasoned that the appellate panel abused its own discretion by not showing the proper deference to the district court’s findings and misapplying the test for ineffective assistance of counsel. Ultimately, the Ninth Circuit panel provided a workable Sixth Amendment framework for the lower courts to follow. This framework diminishes the chance that future indigent defendants, like Johnson, will have to suffer the injustice of receiving ineffective assistance of counsel with an inadequate remedy on appeal.