Hoffman v. Arave , 518 F.3d 656 ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MAXWELL HOFFMAN,  No. 02-99004
Petitioner-Appellant,
D.C. No.
v.
CV-94-00200-S-
ARVON J. ARAVE, Warden, Idaho  BLW
Maximum Security Institution, District of Idaho,
Department of Correction, State of Boise
Idaho,
ORDER
Respondent-Appellee.

Filed February 14, 2008
Before: Harry Pregerson, William A. Fletcher, and
Ronald M. Gould, Circuit Judges.
ORDER
In Hoffman v. Arave, 455 F.3d 926 (9th Cir. 2006), we
affirmed in part and reversed in part the district court’s habeas
corpus order in this death penalty case. In relevant part, we
granted Hoffman’s habeas petition with respect to his claim
that he received ineffective assistance of counsel during the
plea bargaining phase of his criminal case. 455 F.3d at 945.
Following our decision, the State of Idaho petitioned for
writ of certiorari, which the Supreme Court granted. Arave v.
Hoffman, 128 S. Ct. 532 (2007). Before the Supreme Court
heard this case, however, Hoffman moved the Court to vacate
the portion of our decision addressing his claim that counsel
was ineffective during plea bargaining. Arave v. Hoffman, 128
S. Ct. 749, 749-50 (2008) (per curiam). Hoffman represented
that he wished to withdraw his claim so that he could proceed
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1906 HOFFMAN v. ARAVE
with the resentencing ordered by the district court. Id. The
State agreed that Hoffman’s request mooted his claim, and
asked the Court to grant his motion. Id.
The Court granted Hoffman’s motion. Id. The Court agreed
that Hoffman’s motion mooted his claim of ineffective assis-
tance of counsel during plea bargaining. Id. Accordingly, the
Court vacated our judgment to the extent that it addressed that
claim, and remanded for further proceedings. Id.
We now instruct the district court to dismiss with prejudice
Hoffman’s claim of ineffective assistance of counsel during
plea bargaining. The district court’s grant of Hoffman’s
habeas petition on his claims of ineffective assistance of
counsel with respect to sentencing still stands. The State of
Idaho should proceed with the resentencing of Hoffman as
ordered by the district court.
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