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Name: Perez v. Rosario
Case #: 04-15279
Court: US Court of Appeals
District 9 Cir
Opinion Date: 05/22/2006

A defendant cannot successfully make a claim of ineffective assistance of counsel during the plea bargaining stage when the legal mistake that allegedly denied him effective assistance of counsel was the same mistake that led to the plea offer in the first place. The prosecutor offered petitioner a plea bargain of fourteen years based on the mistaken assumption that one of the defendant’s prior convictions did not qualify as a strike. Defense counsel failed to inform petitioner that the prosecutor was mistaken and that, if convicted, he faced a life sentence because it would be his third strike. Petitioner turned down the offer. Post conviction, he filed a writ of habeas corpus alleging ineffective assistance of counsel during the plea bargaining process. His petition included a declaration attesting that had counsel properly advised him he faced a life sentence, he would accepted the plea. The Ninth Circuit rejected the claim because petitioner could not establish prejudice. The likelihood of a more beneficial outcome attributable to an incorrect interpretation of law should be regarded as a potential “windfall,” rather than the legitimate “prejudice” contemplated by Strickland. Since petitioner was not entitled to a plea offer based on mistaken legal assumptions, any ineffectiveness of counsel that led him to reject the offer did not prejudice him.