Rishor v Ferguson, No. 14-36071 [May 6, 2016]
Mr. Rishor represented himself at his trial. On this habeas petition, he alleges that he did not validly waive counsel and that the State violated double jeopardy principles on remand. The district court granted his petition after the filing of a motion for reconsideration. Rishor appealed his sentence and it was reversed on an erroneous jury instruction. He claims that he did not valid waive his right to counsel on remand. The Washington Supreme Court denied his claim on the grounds that he validly waived his right to counsel before his original trial and that he was “more than ready to proceed pro se” on remand. The court construed Rishor’s motion as a motion to alter or amend the judgment under Federal Rule of Civil Procedure 59(e) as the rule does not include motions for reconsideration. The question “presented, therefore, is whether Rishor’s Rule 59(e) motion is subject to the additional restrictions that apply to ‘second or successive’ habeas corpus petitions under the provisions of the AEDPA.” The Court held that “a Rule 59(e) motion that raises entirely new claims should be construed as a second or successive habeas petition subject to AEDPA’s restrictions. A Rule 59(e) motion raises a ‘new claim’ when the motion seeks to add a ground for relief not articulated in the original federal petition, presents newly discovered evidence, or seeks relief based on a subsequent change in the law. In contrast, a timely Rule 59(e) motion that asks the district court to ‘correct manifest errors of law or fact upon which the judgment rests’ should not be construed as a second or successive habeas petition.” After evaluating Rishor’s motion for reconsideration the court found that it did not raise any new claims that should be construed as a second or successive petition. The court went on to hold that the district court erred in finding the state court unreasonably applied clearly established Federal law, because the Supreme Court has not addressed the issue of whether on a second trial a waiver is need when it was properly given in the first trial. Therefore, since fairminded jurist could disagree as to whether Rishor’s original waiver of counsel remained intact throughout his criminal prosecution, the court reversed and denied his petition. The court additionally found that the state's refiling of the charge the jury acquitted him of in the first trial was not a violation of double jeopardy.