The Ninth Circuit today denied rehearing en banc in the Idaho case of Hoffman v. Arave, No 02-99004. The panel decision held that counsel was ineffective in rejecting a no-death-penalty plea bargain because he believed that Idaho's death penalty law would be struck down under the then-recent Ninth Circuit decision of Adamson v. Ricketts, 865 F.2d 1011, 1023-28 (9th Cir. 1988) (en banc), abrogated by Walton v. Arizona, 497 U.S. 639 (1990), overruled by Ring v. Arizona, 536 U.S. 584 (2002).
Judge Bea's dissent from denial of rehearing en banc notes, "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 constitutional law applicable in states located in this Circuit."
Another intriguing question is whether a person fairly tried and sentenced can receive relief under Strickland v. Washington, 466 U.S. 668 (1986) on the ground that counsel could have gotten him off with less than he deserved through a plea bargain. Strickland described the "prejudice" element in a couple of different ways, one of which was, "This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland held, "A reasonable probability [of a different result] is a probability sufficient to undermine confidence in the outcome." While that may be true for trial, the context in which that statement was made, it is not true for plea bargaining.