Michael Cuero v. Matthew Cate

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHAEL DANIEL CUERO, No. 12-55911

Petitioner-Appellant,

D.C. No.

v. 3:08-cv-02008-BTM-WMC

MATTHEW CATE,

Respondent-Appellee. OPINION

Appeal from the United States District Court

for the Southern District of California

Barry T. Moskowitz, District Judge, Presiding

Argued and Submitted August 5, 2015

Pasadena, California

Filed June 30, 2016

Before: Diarmuid F. O’Scannlain, Barry G. Silverman,

and Kim McLane Wardlaw, Circuit Judges.

Opinion by Judge Wardlaw;

Dissent by Judge O’Scannlain

2 CUERO V. CATE

SUMMARY*

Habeas Corpus

The panel reversed the district court’s judgment denying

California state prisoner Michael Daniel Cuero’s 28 U.S.C.

§ 2254 habeas corpus petition and remanded.

The panel held that after Cuero entered a binding,

judicially-approved plea agreement guaranteeing a maximum

sentence of 14 years and 4 months in prison, and stood

convicted, the prosecution breached the plea agreement by

moving to amend the complaint to charge Cuero’s prior

assault conviction as a second strike, and the Superior Court

acted contrary to federal law, clearly established by the

Supreme Court in Santobello v. New York, 404 U.S. 257

(1971), when it permitted the amendment and refused to order

specific performance of the original plea agreement. The

panel wrote that by failing to interpret Cuero’s plea

agreement consistently with California contract law, the

Superior Court unreasonably applied federal law clearly

established by the Supreme Court in Ricketts v. Adamson, 483

U.S. 1 (1987). The panel explained that allowing Cuero to

withdraw his guilty plea, exposing Cuero to the risk of trial

and receiving an indeterminate sentence of 64 years to life,

was no remedy. The panel remanded with instructions to

issue a conditional writ requiring the state to resentence

Cuero in accordance with the original plea agreement within

60 days of the issuance of the mandate.

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

CUERO V. CATE 3

Dissenting, Judge O’Scannlain wrote that the majority

erroneously orders federal habeas relief to a state prisoner on

the basis of a non-existent plea agreement and irrelevant state

contract law.

COUNSEL

Devin Burstein (argued), Warren & Burstein, San Diego,

California, for Petitioner-Appellant.

Anthony Da Silva (argued) and Matthew Mulford, Deputy

Attorneys General; Julie L. Garland, Senior Assistant

Attorney General; Gerald A. Engler, Chief Assistant Attorney

General; Kamala Harris, Attorney General of California;

Office of the Attorney General, San Diego, California; for

Respondent-Appellee.

4 CUERO V. CATE

OPINION

WARDLAW, Circuit Judge:

On December 8, 2005, Michael Daniel Cuero stood in

open court before the Honorable Charles W. Ervin, Judge of

the Superior Court in and for the County of San Diego, and

pursuant to a written plea agreement, he freely and

voluntarily pleaded guilty to one felony count of causing

bodily injury while driving under the influence and one

felony count of unlawful possession of a firearm. Cuero also

admitted a single prior strike conviction1 and four prison

priors.2 In exchange for Cuero’s waiver of his constitutional

and numerous other rights, the prosecution dismissed a

misdemeanor count, thereby guaranteeing Cuero a maximum

sentence of 14 years, 4 months in prison and 4 years of

parole, as explained both in the written plea agreement,

1

“California’s current three strikes law consists of two virtually identical

statutory schemes ‘designed to increase the prison terms of repeat

felons.’” Ewing v. California, 538 U.S. 11, 15 (2003) (quoting People v.

Superior Court of San Diego Cty. ex rel. Romero, 917 P.2d 628, 630 (Cal.

1996)). When Cuero was charged in 2005, the three strikes law required

that a defendant with a single qualifying conviction, i.e., a single strike,

“be sentenced to ‘twice the term otherwise provided as punishment for the

current felony conviction.’” Id. at 16 (quoting Cal. Penal Code

§§ 667(e)(1), 1170.12(c)(1)). If the defendant had two or more qualifying

convictions, the law mandated “an indeterminate term of life

imprisonment.” Id. (quoting Cal. Penal Code §§ 667(e)(2)(A),

1170.12(c)(2)(A)). See generally 3 B.E. Witkin et al., California Criminal

Law §§ 428–429 (4th ed. 2012).

2

California Penal Code § 667.5(b) requires a court to “impose a one-

year term for each prior separate prison term or county jail term” served

by a defendant. California courts refer to these prior terms of

incarceration as “prison priors.” Cuero admitted serving four prison

priors, resulting in the addition of four consecutive years to his sentence.

CUERO V. CATE 5

Appendix A, ¶ 7a, and by Judge Ervin during the plea

colloquy. Judge Ervin then accepted Cuero’s plea and

admissions, and set sentencing for January 11, 2006. That

same day, Judge Ervin signed the Finding and Order,

Appendix A at 3, stating that “the defendant is convicted

thereby.”

Cuero stood convicted; “nothing remain[ed] but to give

judgment and determine punishment.” Boykin v. Alabama,

395 U.S. 238, 242 (1969). Under clearly established

Supreme Court law, the plea agreement bound the

government. See Mabry v. Johnson, 467 U.S. 504, 507–08

(1984) (a defendant’s guilty plea “implicates the

Constitution,” not the “plea bargain standing alone”);

Santobello v. New York, 404 U.S. 257, 262 (1971) (“[W]hen

a plea rests in any significant degree on a promise or

agreement of the prosecutor, so that it can be said to be part

of the inducement or consideration, such promise must be

fulfilled.”); Boykin, 395 U.S. at 242, 244 (“[A] plea of guilty

is more than an admission of conduct; it is a conviction.”). In

Cuero’s case, the government was bound by its agreement in

open court that punishment could be no greater than 14 years,

4 months in prison. See Ricketts v. Adamson, 483 U.S. 1, 5

n.3 (1987) (“[T]he construction of [a] plea agreement and the

concomitant obligations flowing therefrom are, within broad

bounds of reasonableness, matters of state law.”); see also

Buckley v. Terhune, 441 F.3d 688, 694 (9th Cir. 2006) (en

banc) (“Under Santobello v. New York, 404 U.S. 257, 261–62

(1971), a criminal defendant has a due process right to

enforce the terms of his plea agreement.”).

Improbably, the day before the scheduled sentencing, the

state prosecutor moved to amend the criminal complaint to

allege an additional prior strike conviction, which, if allowed,

6 CUERO V. CATE

would result in an indeterminate 64 years to life sentence

under California’s three strikes law.3 Even more improbably,

a different Superior Court judge than Judge Ervin permitted

the amendment. Not only did the prosecution breach the plea

agreement by seeking to amend the complaint after the deal

was sealed, the Superior Court judge unreasonably applied

clearly established Supreme Court authority by failing to

recognize that the “breach [was] undoubtedly a violation of

the defendant’s rights.” Puckett v. United States, 556 U.S.

129, 136 (2009) (citing Santobello, 404 U.S. at 262). That

the Superior Court allowed Cuero to withdraw his guilty plea

and enter a new plea agreement calling for an indeterminate

25 years to life sentence was no remedy here; Cuero lost the

benefit of his original bargain.

Because the state court neither recognized nor applied

clearly established Supreme Court authority, and acted in

contravention of that authority, we reverse the judgment of

the district court denying Cuero’s habeas petition, and we

remand with instructions to issue the writ of habeas corpus.

I. Jurisdiction and Standard of Review4

We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and

2253. We review de novo a district court’s denial of a habeas

petition. Hurles v. Ryan, 752 F.3d 768, 777 (9th Cir. 2014).

3

Although the state also alleged two additional “serious felony” priors,

it was the addition of the second strike that exposed Cuero to an

indeterminate life sentence.

4

Cuero properly exhausted on direct and collateral review his claims

that the prosecutor breached the plea agreement in violation of his due

process rights and that he received ineffective assistance of counsel. We

do not reach the latter claim.

CUERO V. CATE 7

Because Cuero filed his federal habeas petition after April 24,

1996, the Anti-Terrorism and Effective Death Penalty Act

(“AEDPA”) governs our review. Id.

AEDPA bars relitigation of any claim adjudicated on the

merits in state court, unless the state court’s decision satisfies

the exceptions contained in 28 U.S.C. §§ 2254(d)(1) or (2).

Harrington v. Richter, 562 U.S. 86, 98 (2011). Those

exceptions authorize a grant of habeas relief where the

relevant state-court decision was (1) “contrary to, or involved

an unreasonable application of, clearly established Federal

law, as determined by the Supreme Court” or (2) “based on

an unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.” 28 U.S.C.

§§ 2254(d)(1), (2).

“[A] state-court decision is contrary to Federal law ‘if the

state court arrives at a conclusion opposite to that reached by

th[e Supreme] Court on a question of law,’ or ‘the state court

confronts facts that are materially indistinguishable from a

relevant Supreme Court precedent and arrives at a result

opposite to [the Supreme Court].’” Murray v. Schriro,

745 F.3d 984, 997 (9th Cir. 2014) (alterations in original)

(quoting Williams v. Taylor, 529 U.S. 362, 405 (2000)). “A

state-court decision is an ‘unreasonable application’ of

Supreme Court precedent if ‘the state court identifies the

correct governing legal rule from th[e Supreme] Court’s cases

but unreasonably applies it to the facts of the particular state

prisoner’s case,’ or ‘the state court either unreasonably

extends a legal principle from [Supreme Court] precedent to

a new context where it should not apply or unreasonably

refuses to extend that principle to a new context where it

should apply.’” Id. (alterations in original) (quoting

Williams, 529 U.S. at 407).

8 CUERO V. CATE

We review the last reasoned decision of the state courts.

“When a state court does not explain the reason for its

decision, we ‘look through’ to the last state-court decision

that provides a reasoned explanation capable of review.” Id.

at 996 (quoting Shackleford v. Hubbard, 234 F.3d 1072, 1079

n.2 (9th Cir. 2000)). Where a reasoned state-court decision

exists, we do not “evaluate all the hypothetical reasons that

could have supported the high court’s decision.” Cannedy v.

Adams, 706 F.3d 1148, 1157 (9th Cir.), amended on denial of

reh’g by 733 F.3d 794 (9th Cir. 2013); see also id. at 1159

(“Richter does not change our practice of ‘looking through’

summary denials to the last reasoned decision—whether

those denials are on the merits or denials of discretionary

review.” (footnote omitted)); Medley v. Runnels, 506 F.3d

857, 862–63 (9th Cir. 2007) (en banc) (Judge Callahan

writing for the majority). Here, we evaluate the San Diego

Superior Court’s decision to grant the prosecution’s motion

to amend the complaint following Cuero’s entry of his

original guilty plea and his conviction based on that plea.5

II. Discussion

A. Cuero entered a binding, judicially approved plea

agreement and stood convicted.

Under clearly established Supreme Court law, Cuero

stood convicted and his plea agreement became binding the

moment the first Superior Court judge accepted his guilty

5

On direct appeal, Cuero’s appointed counsel filed a brief pursuant to

People v. Wende, 600 P.2d 1071 (Cal. 1979) (en banc), and Anders v.

California, 386 U.S. 738 (1967). The California Court of Appeal affirmed

Cuero’s conviction and sentence in an unpublished, unreasoned opinion,

finding “no reasonably arguable appellate issue.”

CUERO V. CATE 9

plea. “A plea of guilty is more than a confession which

admits that the accused did various acts; it is itself a

conviction.” Boykin, 395 U.S. at 242. And “[w]hen a plea

rests in any significant degree on a promise or agreement of

the prosecutor, so that it can be said to be part of the

inducement or consideration, such promise must be fulfilled.”

Santobello, 404 U.S. at 262 (emphasis added); see also Peter

Westen & David Westin, A Constitutional Law of Remedies

for Broken Plea Bargains, 60 Calif. L. Rev. 471, 474 (1978)

(citing the language quoted above as the “undisputed

holding” of Santobello). A defendant’s guilty plea thus

“implicates the Constitution,” transforming the plea bargain

from a “mere executory agreement” into a binding contract.

Mabry, 467 U.S. at 507–08.6 In other words, a guilty plea

seals the deal between the state and the defendant, and vests

the defendant with “a due process right to enforce the terms

of his plea agreement.” Buckley, 441 F.3d at 694 (citing

Santobello, 404 U.S. at 261–62); see also Doe v. Harris,

640 F.3d 972, 975 (9th Cir. 2011); Brown v. Poole, 337 F.3d

1155, 1159 (9th Cir. 2003).

6

Although Mabry clarified the constitutional significance of a

consummated plea agreement, insofar as Cuero’s case is concerned, it did

nothing more. As the dissent points out, Mabry involved a “prosecutor’s

withdrawn offer.” 467 U.S. at 510 (emphasis added). In Mabry, the

prosecution had offered the defendant more lenient sentencing terms in

exchange for his guilty plea and, when the defendant attempted to accept

the offer, the government withdrew it. Id. at 505–06. The defendant then

opted to stand trial and, following a mistrial, pleaded guilty on entirely

different terms. Id. at 506. Unsurprisingly, the Mabry court refused to

enforce the prosecutor’s original, withdrawn offer—the defendant’s guilty

plea “was in no sense induced by the prosecutor’s withdrawn offer,” id.

at 510, and that “executory agreement” was not made binding through an

“ensuing guilty plea,” id. at 507.

10 CUERO V. CATE

In Buckley v. Terhune, our court, sitting en banc, affirmed

a grant of habeas relief pursuant to 28 U.S.C. § 2254(d)(1)

that ordered specific enforcement of the terms of a plea

agreement. 441 F.3d at 691. There, the state prosecutor

offered a plea bargain: Buckley would provide cooperating

testimony against his codefendants in return for which the

prosecutor would dismiss his robbery and burglary charges

and reduce the first degree murder charge against him to

second degree. Id. Attached to the offer was a felony

disposition statement that stated, under “Consequences of the

Plea,” that Buckley could be sentenced to a “maximum

possible term of 15 years.” Id. Buckley signed the plea

agreement, initialing the maximum sentence line on

December 17, 1987. Id. At some point before the change of

plea hearing on January 4, 1988, the state prosecutor, on his

own and without Buckley’s knowledge, added a handwritten

paragraph to the disposition statement stating that the

sentence would be a “maximum term of 15 years to life.” Id.

at 691–92. Just as in Cuero’s case, during the guilty plea

colloquy pursuant to the plea bargain, the state court told

Buckley that he could be sentenced to state prison for a

“maximum possible term of fifteen years.” Id. at 692.

Following the trial of his codefendants in which Buckley

“complied with the terms of the negotiated disposition,”

according to the state prosecutor, the court sentenced Buckley

to a prison term of 15 years to life. Id. at 693. And, again,

just as in Cuero’s case, the last reasoned state court decision

failed to “interpret Buckley’s plea agreement according to

California contract law.” Id. at 691. We affirmed the district

court’s grant of habeas relief because the state court’s failure

was “contrary to clearly established Supreme Court law as set

forth in Santobello v. New York . . . and Ricketts v. Adamson,”

satisfying § 2254(d)(1)’s “contrary to” exception. Id.

CUERO V. CATE 11

While the state prosecutor here did not act so

underhandedly as Buckley’s, the same result obtained—

Cuero performed his part of the bargain only to have the state

renege on its. The state originally charged Cuero with two

felonies and a misdemeanor. It later amended the complaint

to add a single prior strike conviction and four prison priors.

Next, the parties entered into a written plea agreement

through which the state induced Cuero to cede his

constitutional and other rights and plead guilty in exchange

for the state’s promise to drop the misdemeanor charge,

thereby guaranteeing Cuero a “maximum [sentencing]

exposure of 14 years, 4 months in state prison, 4 years on

parole and a $10,000 fine.” On December 8, 2005, the parties

signed the plea agreement, which is on page three of the

dissent’s Appendix A, and which, as in Buckley, under

“Consequences of the Plea” set forth Cuero’s state-

guaranteed maximum sentencing exposure. That same day,

Judge Ervin held a change of plea hearing. The state

prosecutor, Kristian Trocha, Cuero, and Cuero’s counsel,

Alberto Tamayo, stood before Judge Ervin and expressed

their mutual intent to “settle this case today.” The court

received the charge sheet—i.e., the amended complaint,

Appendix A.1, attached to the majority opinion—and asked

counsel to what Cuero would be pleading. Cuero’s counsel,

referring to the charge sheet, stated that Cuero would be

pleading to “the sheet without the Count 3 misdemeanor.”

Judge Ervin reiterated, “He’s going to plead guilty to

everything on the charging document with the exception of

Count 3.” The judge next indicated that “It is a sentence for

the Court, no deals with the people,” meaning that the plea

agreement was as to the charge and not to the specific

12 CUERO V. CATE

sentence.7 Both the prosecutor and defense counsel assented.8

7

Two types of plea bargains exist: charge bargains and sentence

bargains. Charge bargains “consist[] of an arrangement whereby the

defendant and prosecutor agree that the defendant should be permitted to

plead guilty to a charge less serious than is supported by the evidence.”

5 Wayne R. LaFave et al., Criminal Procedure § 21.1(a) (4th ed. 2015).

Sentence bargains “involve[] an agreement whereby the defendant pleads

‘on the nose,’ that is, to the original charge, in exchange for some kind of

promise from the prosecutor concerning the sentence to be imposed.” Id.;

see also United States v. Miller, 722 F.2d 562, 563 (9th Cir. 1983)

(explaining that charge bargains are “predicated upon the dropping of

counts,” whereas sentence bargains are “predicated either upon the

[prosecutor’s] recommendation of or agreement not to oppose a particular

sentence . . . , or upon a guarantee of a particular sentence”). “Sentence

bargaining carries with it a somewhat greater risk than charge bargaining.

When a defendant bargains for a plea to a lesser offense, he receives his

bargain the instant he enters his guilty plea, but when he pleads guilty in

exchange for the prosecutor’s promise to seek a certain sentence there

remains some possibility that . . . the trial judge will not follow the

prosecutor’s recommendations.” LaFave, supra, at § 21.1(a). This case

involves only charge bargaining.

Federal Rule of Criminal Procedure 11(c)(1) also reflects the

distinction between a charge bargain and a sentence bargain, and

prescribes procedures for each:

[T]he plea agreement may specify that an attorney for

the government will:

(A) not bring, or will move to dismiss, other charges;

(B) recommend, or agree not to oppose the defendant’s

request, that a particular sentence or sentencing range

is appropriate or that a particular provision of the

Sentencing Guidelines, or policy statement, or

sentencing factor does or does not apply (such a

recommendation or request does not bind the court); or

CUERO V. CATE 13

Cuero was then placed under oath and asked by Judge Ervin

“Did you hear the plea agreement that I described?”

Following Cuero’s affirmative response, the court asked, “Is

it your full and complete understanding to settle this case

today?” The court went on to review the forms, the dissent’s

Appendix A, with Cuero, asking Cuero again to inform him

that he “wish[ed] to accept the agreement to this case, written

on the blue form,” and to confirm Cuero “sign[ed] his name,”

“place[d] his initials in these boxes,” and “put his thumb print

on it.” Again, following Cuero’s affirmative responses, the

court stated, “In addition to the plea agreement, the document

[Appendix A to the dissent] sets forth and describes

constitutional rights that you enjoy.” See Appendix A at 1.

The court next informed Cuero that 14 years, 4 months in

prison was the “maximum punishment [he] could receive,”

and Cuero pleaded guilty to the two felonies and admitted his

single strike and four prison priors. The court accepted the

(C) agree that a specific sentence or sentencing range is

the appropriate disposition of the case, or that a

particular provision of the Sentencing Guidelines, or

policy statement, or sentencing factor does or does not

apply (such a recommendation or request binds the

court once the court accepts the plea agreement).

Fed. R. Crim. P. 11(c)(1)(A)–(C).

Thus, there were no agreements about Cuero’s sentence, as indicated

by Appendix A to the dissent; rather, because the state agreed to drop the

misdemeanor charge, Cuero’s sentence was limited to 14 years and 4

months.

8

The dissent misleadingly mistakes the “no deals with the people”

language to mean that there was no plea agreement, and, ironically, holds

up the document setting forth the plea agreement, Appendix A, to support

its view.

14 CUERO V. CATE

plea. The court then turned to the prosecutor, Mr. Trocha,

and asked, “People’s motion as to the misdemeanor count,

which is Count 3?” Mr. Trocha stated, “Dismiss in light of

the plea.” The court then granted the state’s motion “in light

of the plea,” accepted “the defendant’s plea and admissions,”

and concluded that “the defendant is convicted thereby.”

Nothing more was required to consummate Cuero’s plea

agreement; it “was accepted and final . . . at the moment that

the judge made the requisite factual findings and accepted the

plea.” Brown, 337 F.3d at 1159. And the prosecution was

bound by the agreement’s terms, which it acknowledged by

immediately moving to dismiss the misdemeanor charge.9

9

Absurdly, the dissent attaches the very document that the court and

both state and defense counsel identified as the written plea agreement as

purported proof that there was no agreement. The dissent’s analysis reads

like the caption “This is not a pipe” below Magritte’s famous painting of

a pipe. Even more mystifying, the dissent disregards the entire plea

colloquy, transcript of proceedings, and the written plea agreement itself

to reach this convenient conclusion. The dissent stands alone in its

erroneous conclusion—not even the state disputed the existence of the

plea agreement, until oral argument, and it waived that argument by

failing to raise it in the answering brief. Clem v. Lomeli, 566 F.3d 1177,

1182 (9th Cir. 2009) (holding that an argument not addressed in an

answering brief is waived (citing United States v. Gamboa-Cardenas,

508 F.3d 491, 502 (9th Cir. 2007)). Throughout its briefing, the state

insists that California law allowed it to amend the complaint, even after

the plea agreement was entered and Cuero was convicted. By contrast,

Cuero argued throughout his opening brief that the state breached his

original plea agreement—and the state did not dispute the original plea

agreement’s existence anywhere in its answering brief. To the contrary,

the state acknowledged the agreement’s existence and framed the issue to

be resolved as “[w]hether amendment of the complaint after Cuero

pleaded guilty violated the plea agreement and Cuero’s right to due

process.” Indeed, the state’s brief contrasted Cuero’s “initial plea

agreement” with his “second” or “new plea agreement.” It was therefore

no wonder that members of our panel greeted the state’s argument that

CUERO V. CATE 15

B. The prosecution breached the court-approved plea

agreement by attempting to amend the complaint.

Although the prosecution initially honored its promise to

dismiss the misdemeanor charge, it then breached the plea

agreement by moving to amend the complaint to charge

Cuero’s prior assault conviction as a second strike. The

Superior Court acted contrary to clearly established Supreme

Court law by permitting the amendment and refusing to

enforce the original plea agreement.

“[T]he construction of [a] plea agreement and the

concomitant obligations flowing therefrom are, within broad

bounds of reasonableness, matters of state law.” Adamson,

483 U.S. at 5 n.3; see also Buckley, 397 F.3d at 1161–62

(Bea, J., dissenting) (“At the time of the state habeas

proceeding, clearly established Federal law, as determined by

the Supreme Court, made the interpretation and construction

of a plea agreement a matter of state law.” (citing Adamson,

483 U.S. at 5 n.3)), majority rev’d en banc, 441 F.3d 688 (9th

Cir. 2006); see also Puckett, 556 U.S. at 137 (“[P]lea bargains

are essentially contracts.”). “Under AEDPA, we . . . must

consider whether the [state court] decision is consistent with

a proper application of state contract law in interpreting the

plea agreement; if not, the decision was an ‘unreasonable

application of’ clearly established federal law.” Davis v.

Woodford, 446 F.3d 957, 962 (9th Cir. 2006) (citing, inter

alia, Adamson, 483 U.S. at 5 n.3). In Buckley, we noted that

as of 1999, when the state court summarily denied Buckley’s

habeas petition, the obligation to construe plea agreements

according to state contract law “had been clearly established

there was no plea agreement, made for the first time at oral argument, with

incredulity.

16 CUERO V. CATE

federal law for more than a decade.” 441 F.3d at 694–95

(quoting Adamson, 483 U.S. at 6 n.3).10

Under California law, “[a] plea agreement is, in essence,

a contract between the defendant and the prosecutor to which

the court consents to be bound.” People v. Segura, 188 P.3d

649, 656 (Cal. 2008) (quoting People v. Ames, 261 Cal. Rptr.

911, 913 (Ct. App. 1989)). Thus, “[a] negotiated plea

agreement . . . is interpreted according to general contract

principles.” People v. Shelton, 125 P.3d 290, 294 (Cal.

2006). Under California law, “[a] contract must be so

interpreted as to give effect to the mutual intention of the

parties as it existed at the time of contracting.” Cal. Civ.

Code § 1636. A contract’s “clear and explicit” language

governs its interpretation. Id. § 1638. Moreover, “[a]lthough

a plea agreement does not divest the court of its inherent

sentencing discretion, ‘a judge who has accepted a plea

bargain is bound to impose a sentence within the limits of that

bargain.’” Segura, 188 P.3d at 656 (quoting Ames, 261 Cal.

Rptr. at 913).

10

The dissent argues that Buckley’s reasoning was undermined to the

point of irreconcilability by the Supreme Court’s intervening opinions in

Wilson v. Concorran, 562 U.S. 1 (2010) (per curiam), and Swarthout v.

Cooke, 562 U.S. 216 (2011) (per curiam), freeing our three-judge panel to

entirely disregard the en banc Buckley decision. The dissent is incorrect.

Wilson and Swarthout each reversed an intermediate appellate decision

based on perceived errors of state, rather than federal, law in the areas of

statutory aggravation and parole, respectively. They do not speak to the

situation where, as here, the Supreme Court has clearly held that the

federal constitutional due process right is itself defined by reference to

principles of state law. Buckley, 441 F.3d at 695 (citing Adamson,

483 U.S. at 6 n.3).

CUERO V. CATE 17

The terms of Cuero’s plea agreement were “clear and

explicit”: Cuero promised to plead guilty to two felonies, a

prior strike, and four prison priors; in exchange, the state

promised to drop the misdemeanor charge. By seeking to

amend the charges in the complaint, the prosecution denied

Cuero the benefit of his bargain: a maximum sentence of 14

years and 4 months. And, as a result of the amendment, the

Superior Court ultimately imposed an indeterminate life

sentence well beyond the limits of the plea agreement.11

Moreover, the agreement said nothing about altering the

foundational assumption on which the bargain was

struck—namely, the set of charges alleged in the criminal

complaint. See People v. Walker, 819 P.2d 861, 867 (Cal.

1991) overruled on other grounds by People v. Villalobos,

277 P.3d 179 (Cal. 2012) (“When a guilty plea is entered in

exchange for specified benefits such as the dismissal of other

counts or an agreed maximum punishment, both parties,

including the state, must abide by the terms of the

agreement.”). Such an implied term would render the

agreement illusory by providing the state unfettered license

to terminate it. See Sateriale v. R.J. Reynolds Tobacco Co.,

697 F.3d 777, 791 (9th Cir. 2012) (“[A]n enforceable

termination clause that gives a promisor an unrestricted

power to terminate a contract at any time, without notice,

11

The state argues that its conduct was appropriate because California

Penal Code § 1192.5 allows a state court to, among other things,

“withdraw its approval [of a plea] in the light of further consideration of

the matter.” But that is not what happened here. Rather, the prosecution

sought to renege on its court-approved promise to Cuero. The result:

Cuero received a sentence far greater than that specified in the court-

approved plea agreement. Section 1192.5 actually prohibits what took

place here. That section disallows the imposition of “a punishment more

severe than that specified in the plea.”

18 CUERO V. CATE

renders the promise illusory and unenforceable, at least so

long as the purported contract remains wholly executory.”).

This outcome is inconsistent with California contract law,

which prefers an “interpretation which gives effect” to a

contract over one that would render it void. Cal. Civ. Code

§ 3541.12

As in Buckley, where we noted that the state court’s

decision denying habeas neither mentioned state contract law

nor referred to the terms of the plea agreement, nothing in the

second Superior Court judge’s decision permitting the state

prosecutor’s amendment here suggests that it understood it

was dealing with a binding plea agreement, let alone that it

was constitutionally obligated to construe the agreement in

accordance with state contract law. See Buckley, 441 F.3d at

696. Tellingly, the Superior Court permitted the amendment

12

The state argues that our construction of the plea agreement is

foreclosed by California Penal Code § 969.5, which permits amendment

of a complaint after a defendant pleads guilty if the complaint “does not

charge all prior felonies of which the defendant has been convicted.” But

§ 969.5 is irrelevant to the interpretation of a court-approved plea

agreement under state contract principles. Under California law, “a

prosecutor may withdraw from a plea bargain at any time before the

defendant pleads guilty or otherwise detrimentally relies on that bargain.”

Witkin, supra at § 382 (emphasis added); see also People v. Rhoden,

89 Cal. Rptr. 2d 819, 824–25 (Ct. App. 1999), as modified on denial of

reh’g (Nov. 23, 1999). Once a defendant enters a guilty plea pursuant to

a plea agreement, the state is bound by the agreement and any attempt by

the state to withdraw—through a motion to amend the complaint pursuant

to § 969.5 or otherwise—constitutes a breach. Simply put, that § 969.5

provides a discretionary vehicle for post-plea amendment of a complaint

does not mean that the prosecutor can amend the complaint after the court

has approved a plea agreement and signed an order of conviction. In any

event, the state did charge “all prior felonies of which [Cuero] ha[d] been

convicted” in the original complaint—it simply did not charge Cuero’s

felony assault conviction as a strike.

CUERO V. CATE 19

in reliance on two state cases: People v. Superior Court

(Alvarado), 255 Cal. Rptr. 46 (Ct. App. 1989), and People v.

Jackson, 48 Cal. Rptr. 2d 838 (Ct. App.), review granted and

opinion superseded, 914 P.2d 831 (Cal. 1996). Although

both cases address the propriety of permitting amendment of

a complaint after a defendant enters a guilty plea, neither

addresses the propriety of such amendment after a defendant

enters a guilty plea induced by a prosecutorial promise—i.e.,

pursuant to a plea bargain—and it has been approved by the

court.13 See Jackson, 48 Cal. Rptr. 2d at 840 (“[T]he court

took Jackson’s plea to the face of the complaint.”); Alvarado,

207 Cal. App. 3d at 471 (noting that the transcript of the plea

colloquy “does not indicate any plea bargain”). In other

words, neither Alvarado nor Jackson discusses the scenario

present here, where the court-approved guilty plea was

entered pursuant to a written plea agreement. Indeed, neither

case contains so much as a hint that the court was applying

California contract law. Thus, by failing to interpret Cuero’s

plea agreement consistently with California contract law, the

Superior Court unreasonably applied federal law clearly

established by the Supreme Court in Adamson nearly thirty

years ago.

13

In granting the state’s motion to amend, the Superior Court reasoned

that Cuero’s “substantial rights [would not be] prejudiced by the mere fact

that [his] potential punishment may have been increased due to the

amendment,” and that Cuero would “be in the same situation as he would

have been prior to entry of the plea.” The court borrowed this (inapposite)

language almost verbatim from Jackson and Alvarado. See Jackson,

48 Cal. Rptr. 2d at 844 (relying on Alvarado).

20 CUERO V. CATE

C. Allowing Cuero to withdraw his guilty plea was no

remedy at all.

The Superior Court also unreasonably applied clearly

established federal law by failing to order specific

performance of Cuero’s plea agreement. A state court must

supply a remedy for a breached plea agreement that comports

with state contract law. See Puckett, 556 U.S. at 137;

Adamson, 483 U.S. at 5 n.3; Davis, 446 F.3d at 962. Under

California law, the remedy for breach must “repair the harm

caused by the breach.” People v. Toscano, 20 Cal. Rptr. 3d

923, 927 (Ct. App. 2004). “‘When the breach [alleged] is a

refusal by the prosecutor to comply with the agreement,

specific enforcement would consist of an order directing the

prosecutor to fulfill the bargain’ and will be granted where

there is a substantial possibility that specific performance will

completely repair the harm caused by the prosecutor’s

breach.” In re Timothy N., 157 Cal. Rptr. 3d 78, 88 (Ct. App.

2013) (alteration in original) (quoting People v. Kaanehe,

19 Cal. 3d 1, 13 (1977)). Under Buckley, which we are bound

to follow, in a situation like that here, where the state has

already received the benefit it bargained for—a plea of guilty

and a conviction—specific performance is the best remedy,

unless the defendant, whose choice it becomes, “elect[s]

instead to rescind the agreement and take his chances from

there.”14 Buckley, 441 F.3d at 699 n.11.

14

In this context, specific performance is necessary to maintain the

integrity and fairness of the criminal justice system. See, e.g., LaFave,

supra, at § 21.2(e) (“When the breach was a failure by the prosecutor to

carry out a promise which was fulfillable, then certainly the defendant’s

request for specific performance should be honored. . . . [T]here is no

reason why a prosecutor who has failed to keep his fulfillable plea bargain

promise should be allowed to force the defendant into a withdrawal of the

plea and thus, presumably, a permanent breach of the bargain.”) (footnotes

CUERO V. CATE 21

Moreover, that the state court permitted Cuero to

withdraw his plea did not “repair the harm” caused by the

prosecutor’s breach. To the contrary: It exposed Cuero to the

risk of going to trial and receiving an indeterminate 64 years

to life sentence. This is hardly the “remedy” Cuero would

have elected had he properly been given a choice. That

Cuero was ultimately able to “bargain” for an indeterminate

25 years to life sentence does not alter the analysis; the state

could not have lawfully pursued an indeterminate life

sentence in the first place if it had not been allowed to breach

the plea agreement. Again, Cuero had performed his part of

the agreement by pleading guilty to the two felony charges,

admitting a single prior strike, and conceding his four prison

priors, giving the government the bargain it sought. Because

Cuero had already performed, “fundamental fairness demands

that the state be compelled to adhere to the agreement as

well.” Brown, 337 F.3d at 1162 (citation omitted). Cuero is

omitted); State v. Tourtellotte, 564 P.2d 799, 802 (1977) (Wash. 1977) (en

banc) (“If a defendant cannot rely upon an agreement made and accepted

in open court, the fairness of the entire criminal justice system would be

thrown into question. No attorney in the state could in good conscience

advise his client to plead guilty and strike a bargain if that attorney cannot

be assured that the prosecution must keep the bargain[.]”). Although not

dispositive, when Santobello was decided, “a majority of the court’s

members . . . [were] on record as favoring looking to defendant’s wishes

[as to choice of remedy].” Dennis A. Fischer, Beyond

Santobello—Remedies for Reneged Plea Bargains, 2 U. San Fernando

Valley L. Rev. 121, 125 (1973); see also Santobello, 404 U.S. at 267

(Douglas, J., concurring) (“[A] court ought to accord a defendant’s

preference considerable, if not controlling, weight inasmuch as the

fundamental rights flouted by a prosecutor’s breach of a plea bargain are

those of the defendant, not of the State.”); id. at 268 (Marshall, J.,

dissenting) (explaining that Justice Douglas’s concurrence, coupled with

the dissenting votes, appeared to create a majority in favor of honoring the

defendant’s preferred remedy).

22 CUERO V. CATE

therefore entitled to the benefit of his original bargain: a

maximum sentence of 14 years, 4 months in prison.

III. Conclusion

The San Diego Superior Court failed to recognize that

Cuero’s entry and Judge Ervin’s acceptance of Cuero’s guilty

plea pursuant to the written plea agreement was binding on

both sides. By allowing the prosecution to breach the

agreement, reneging on the promise that induced Cuero’s

plea, the state court violated federal law clearly established

by the Supreme Court in Santobello. It further violated

clearly established federal law requiring construction of the

plea agreement under state contract law. See Adamson,

483 U.S. at 5 n.3; Buckley, 441 F.3d at 697. Even worse, the

last reasoned decision of the state courts relied on two

inapposite state law cases and failed to even acknowledge,

much less apply, the well-established Supreme Court

authority that dictated the contrary result. This error had a

“substantial and injurious effect” on Cuero, who is serving an

indeterminate life sentence, the minimum term of which, 25

years, is well in excess of the 14 year, 4 month maximum

promised by the government. See Brecht v. Abrahamson,

507 U.S. 619, 637 (1993) (citation omitted). Cuero is entitled

to habeas relief.

Accordingly, the district court’s judgment denying

Cuero’s petition for a writ of habeas corpus is reversed with

instructions to issue a conditional writ requiring the state to

resentence Petitioner in accordance with the original plea

agreement within sixty days of the issuance of the mandate.

REVERSED and REMANDED.

$33(1',;$

CUERO V. CATE 23

O’SCANNLAIN, Circuit Judge, dissenting:

Today, the Court erroneously orders federal habeas relief

to a state prisoner on the basis of a non-existent plea

agreement and irrelevant state contract law. Because the

decision of the California Court of Appeal affirming Cuero’s

conviction was neither contrary to, nor an unreasonable

application of, Supreme Court precedent, the district court’s

denial of the writ of habeas corpus should have been

affirmed.

I respectfully dissent.

I

A

It is appropriate to recapitulate the relevant facts. While

driving under the influence of methamphetamine, Michael

Daniel Cuero veered off the road and crashed his car into

Jeffrey Feldman, another driver who was standing outside his

pickup truck on the side of the road. Feldman sustained

severe injuries including a ruptured spleen, brain damage, and

facial disfigurement. Cuero, a convicted felon prohibited

from possessing a firearm, had a loaded firearm with him.

Over the next two weeks, the State filed a complaint and

then an amended complaint against Cuero. The amended

complaint charged two felonies (driving under the influence

and possession of a firearm by a felon) and one misdemeanor

(being under the influence of a controlled substance). The

State alleged that Cuero had served four prior prison terms

and that one of Cuero’s prior convictions constituted a

“strike” under California’s “three strikes law.” See Cal. Penal

24 CUERO V. CATE

Code § 667(b)–(i).1 Cuero initially pleaded “not guilty” to

the charges in the amended complaint.

On December 8, 2005, Cuero appeared before the

superior court to change his plea to guilty. He signed a

change of plea form, which stated that he had not been

induced to enter the plea by any promises of any kind and that

he had no deals with the State.2 After the court had accepted

Cuero’s plea on both felonies and his admissions to the

“prison priors” and prior strike, the State moved to dismiss

the misdemeanor count, and the court granted the motion. A

sentencing hearing was then scheduled.

B

According to the State, during the preparation of the

sentencing memorandum for the superior court, the probation

officer discovered that one of Cuero’s prior convictions

constituted a strike in addition to the single strike alleged in

the first amended complaint.3 Prior to the scheduled

1

Cuero actually had two prior strikes, but the State initially did not

realize that fact.

2

This form, which is the same form that the mistakenly majority calls

a written plea agreement, is reproduced in Appendix A to this dissent.

3

Cuero had been convicted of violating California Penal Code

§ 245(a)(1), which prohibits assault with a deadly weapon other than a

firearm. “Not all section 245(a)(1) violations constitute strikes under

California law.” Gill v. Ayers, 342 F.3d 911, 914 (9th Cir. 2003). “[T]o

qualify a section 245(a)(1) conviction as a strike, the prosecution must

establish that the defendant ‘personally inflicted great bodily injury on any

person, other than an accomplice, or personally used a firearm’ under

section 1192.7(c)(8) or that he ‘personally used a dangerous or deadly

weapon’ under section 1192.7(c)(23)” of the California Penal Code. Id.

CUERO V. CATE 25

sentencing hearing, the State moved under California Penal

Code § 969.5(a) further to amend its complaint again to add

the allegation of the second strike. Cuero opposed the

motion. On February 2, 2006, the superior court granted the

motion with the condition that Cuero would be permitted to

withdraw his guilty plea, thus restoring all of his

constitutional rights. The court then accepted for filing the

second amended complaint alleging the additional strike.

On March 27, 2006, Cuero moved to withdraw his guilty

plea entered on December 8, 2005. The court granted the

motion and set aside that plea. As part of a “negotiated guilty

plea,” the State filed a third amended complaint omitting the

felon-in-possession charge, and Cuero pleaded guilty to the

charge of driving under the influence and admitted the two

prior strikes. On April 20, 2006, the court sentenced Cuero

to a term of 25 years to life pursuant to the plea agreement

and pronounced judgment.

C

Cuero appealed to the California Court of Appeal.

Pursuant to People v. Wende, 600 P.2d 1071 (Cal. 1979), and

Anders v. California, 386 U.S. 738 (1967), Cuero’s appointed

appellate counsel filed a brief setting forth the evidence in the

superior court, presented no argument for reversal, but asked

the court of appeal to review the record for error. The brief

directed the court’s attention to two potential, but not

arguable, issues: (1) “whether the trial court abused its

(internal alterations omitted). According to the State, Cuero’s admission

of a “personal use of a deadly weapon” allegation did not appear in the

files it originally compiled in preparation for charging Cuero after the car

crash.

26 CUERO V. CATE

discretion by permitting the prosecutor to amend the

complaint to allege additional priors after [Cuero’s] initial

guilty plea” (citing People v. Sipe, 42 Cal. Rptr. 2d 266 (Ct.

App. 1995); People v. Superior Court (Alvarado), 255 Cal.

Rptr. 46 (Ct. App. 1989)); and (2) “whether the amendment

constituted a breach of a plea agreement in violation of due

process, entitling [Cuero] to specific performance of the

original agreement” (citing People v. Walker, 819 P.2d 861

(Cal. 1991), overruled in part by People v. Villalobos,

277 P.3d 179 (Cal. 2012); People v. Mancheno, 654 P.2d 211

(Cal. 1982)). The California Court of Appeal granted Cuero

permission to file a brief on his own behalf, but he did not

respond. The court reviewed the entire record and the

possible issues raised by counsel’s Wende/Anders brief. It

concluded that they “disclosed no reasonably arguable

appellate issue” and affirmed, noting that “[c]ompetent

counsel has represented Cuero on this appeal.”

In due course, Cuero brought this petition for habeas

corpus in federal district court, where it was properly denied

and he timely appealed.

II

A

As a reminder, it must be observed that a state prisoner’s

federal habeas petition “shall not be granted with respect to

any claim that was adjudicated on the merits in State court

proceedings unless the adjudication of the claim–

(1) resulted in a decision that was contrary to,

or involved an unreasonable application

of, clearly established Federal law, as

CUERO V. CATE 27

determined by the Supreme Court of the

United States; or

(2) resulted in a decision that was based on an

unreasonable determination of the facts in

light of the evidence presented in the State

court proceeding.”

28 U.S.C. § 2254(d). “This is a ‘difficult to meet’ and ‘highly

deferential standard for evaluating state-court rulings, which

demands that state-court decisions be given the benefit of the

doubt.’” Cullen v. Pinholster, 563 U.S. 170, 181 (2011)

(quoting Harrington v. Richter, 562 U.S. 86, 102 (2011);

Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam)).

Contrary to the majority’s suggestion that the § 2254(d)

“exceptions authorize a grant of habeas relief,” Maj. Op. at 7,

these clauses prescribe conditions that are necessary, but not

sufficient, for habeas relief under AEDPA. Other

requirements exist. Most importantly for this case, § 2254(d)

“does not repeal the command of § 2254(a) that habeas relief

may be afforded to a state prisoner ‘only on the ground’ that

his custody violates federal law.” Wilson v. Corcoran,

562 U.S. 1, 5–6 (2010) (per curiam).

For purposes of § 2254(d)(1), “clearly established Federal

law” is “the governing legal principle or principles set forth

by the Supreme Court at the time the state court renders its

decision.” Lockyer v. Andrade, 538 U.S. 63, 71–72 (2003)

(citations omitted). It “includes only the holdings, as opposed

to the dicta, of [the Supreme Court’s] decisions.” Woods v.

Donald, 135 S. Ct. 1372, 1376 (2015) (per curiam) (quoting

White v. Woodall, 134 S. Ct. 1697, 1702 (2014)).

28 CUERO V. CATE

B

A threshold problem with the opinion’s analysis is its

failure to identify the appropriate state-court decision before

us. The majority concludes that we should “look through”

the opinion of the California Court of Appeal on direct review

to the earlier reasoned decision of the San Diego Superior

Court. Maj. Op. at 8. However, the look-through doctrine

only applies “[w]here there has been one reasoned state

judgment rejecting a federal claim,” Ylst v. Nunnemaker,

501 U.S. 797, 803 (1991), and we cannot “look through”

when the federal claim at issue was not “adjudicated on the

merits” in the prior reasoned decision, see 28 U.S.C.

§ 2254(d); Casey v. Moore, 386 F.3d 896, 918 n.23 (9th Cir.

2004); Medley v. Runnels, 506 F.3d 857, 870–71 (9th Cir.

2007) (en banc) (Ikuta, J., concurring in part, dissenting in

part) (“[W]e do not ‘look through’ to a state decision which

does not address the constitutional claim.”); see also Murray

v. Schriro, 745 F.3d 984, 997 (9th Cir. 2014)4 (“[W]e ‘look

through’ to the last state-court decision that provides a

reasoned explanation capable of review.” (emphasis added));

Ortiz v. Yates, 704 F.3d 1026, 1034 (9th Cir. 2012) (“[W]e

look through state-court summary denials to the last reasoned

state-court opinion on the claim at issue.” (emphasis added)).

Here, the superior court never did adjudicate the merits of

Cuero’s claim that the second amendment of the complaint

constituted a breach of his plea agreement in violation of due

process, entitling him to specific performance. In Cuero’s

brief in opposition to the motion to amend and in oral

4

I note that the majority relies on one of Murray’s statements of law that

has been undermined by a subsequent Supreme Court decision. See

Woodall, 134 S. Ct. at 1706; contra Maj. Op. at 7–8.

CUERO V. CATE 29

argument on the motion, he exclusively argued that the

superior court should exercise its discretion under state law

to deny leave to amend.5 Cuero did not argue that the second

amendment of the complaint would violate due process. He

did not argue that any plea agreement prohibited the second

amendment of the complaint, nor that he was entitled to

specific performance, nor that the state court was required to

construe plea agreements in accordance with state contract

law. Indeed, Cuero argues to us that his trial counsel was

ineffective for failing to raise Cuero’s due process claim

before the superior court.

Thus, Cuero never raised a due process claim, and the

superior court did not decide one. As a result, Cuero’s claim

that the second amendment of the complaint breached a pre-

existing plea agreement and thereby violated due process was

not adjudicated on the merits by the superior court. Such

claim was indeed adjudicated on the merits by a single state-

court decision: the opinion of the California Court of Appeal

5

Cuero cited only California Penal Code § 969.5(a), Alvarado, and

People v. Jackson, 48 Cal. Rptr. 2d 838 (Ct. App.), review granted and

opinion superseded, 914 P.2d 831 (Cal. 1996). I do not understand why

the majority criticizes the superior court for then addressing these sources

of law in its decision. Maj. Op. at 18–19 & n.13, 22. The majority also

suggests that it grants relief because the superior court did not

“recognize[]” or “acknowledge” (unspecified) Supreme Court precedents

in its decision. Maj. Op. at 6, 22. But a “state court need not cite or even

be aware of [the Supreme Court’s] cases under § 2254(d).” Richter,

56 U.S. at 98 (citing Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam)

(“Avoiding these pitfalls does not require citation of our cases—indeed,

it does not even require awareness of our cases, so long as neither the

reasoning nor the result of the state-court decision contradicts them.”)).

30 CUERO V. CATE

on direct review, the only dispositive “decision” with respect

to which the petition for habeas corpus has been brought.6

C

Of course, “[w]here a state court’s decision is

unaccompanied by an explanation, the habeas petitioner’s

burden still must be met by showing there was no reasonable

basis for the state court to deny relief.” Richter, 562 U.S. at

98. In such a situation, we must ask “what arguments or

theories. . . could have supported[] the state court’s decision”

and then determine “whether it is possible fairminded jurists

could disagree that those arguments or theories are

inconsistent with the holding in a prior decision of” the

Supreme Court. Id. at 102. “Thus, when the state court does

not supply reasoning for its decision, we are instructed to

engage in an independent review of the record and ascertain

whether the state court’s decision was objectively

unreasonable. Crucially, this is not a de novo review of the

constitutional question, as even a strong case for relief does

not mean the state court’s contrary conclusion was

unreasonable.” Murray, 745 F.3d at 996–97 (internal

quotation marks and citations omitted).

“Adherence to these principles serves important interests

of federalism and comity. AEDPA’s requirements reflect a

‘presumption that state courts know and follow the law.’”

Donald, 135 S. Ct. at 1376 (quoting Visciotti, 537 U.S. at 24).

6

This statement requires a slight caveat. With respect to Cuero’s

ineffective assistance of counsel claims, the relevant state-court decision

is that of the California Court of Appeal on collateral review. While the

majority does not reach the issue, I would affirm the denial of the writ

with respect to such claims.

CUERO V. CATE 31

“When reviewing state criminal convictions on collateral

review, federal judges are required to afford state courts due

respect by overturning their decisions only when there could

be no reasonable dispute that they were wrong. Federal

habeas review thus exists as ‘a guard against extreme

malfunctions in the state criminal justice systems, not a

substitute for ordinary error correction through appeal.’” Id.

(quoting Richter, 562 U.S. at 102–03.).

III

In order to prevail in his petition for habeas corpus, Cuero

must demonstrate (among other things) that: (1) on December

8, 2005, he had a plea agreement with terms that prohibited

amendment of the complaint; (2) such plea agreement had

constitutional significance before the entry of judgment, so

that breaching it would violate due process; and (3) rescission

of such plea agreement (withdrawal of the plea) was not a

constitutionally acceptable remedy for the breach of the plea

agreement. Contrary to the majority’s analysis, under the

Supreme Court’s holdings in existence at the time of the

California Court of Appeal’s decision, he cannot.

A

The majority erroneously concludes that, when Cuero

initially pleaded guilty on December 8, 2005, he had a

“written plea agreement” in which the government

guaranteed that punishment would be no greater than 14

years, 4 months in prison. Maj. Op. at 4–5, 5, 6, 11–15 &

nn. 8–9, 19, 21–22. To the contrary, fairminded jurists could

readily conclude that Cuero’s initial guilty plea was not

induced by any agreement with the State, let alone an

agreement that the State would never amend its complaint.

32 CUERO V. CATE

On December 8, 2005, Cuero signed a standard change of

plea form. As completed, that document states:

I, the defendant in the above-entitled case, in

support of my plea of Guilty/No Contest,

personally declare as follows: . . .

2. I have not been induced to enter this plea

by any promise or representation of any kind,

except: (State any agreement with the District

Attorney.)

STC[7] – NO DEALS W/ PEOPLE.

Appendix A at 1 ¶ 2. Cuero’s initials appear next to the line

indicating “STC – NO DEALS W/ PEOPLE.” Id. Cuero

declared that he has “read, understood, and initialed each item

above . . . and everything on the form . . . is true and correct.”

Id. at 3 ¶ 13. In his plea colloquy that same day, Cuero

confirmed that he had read, understood, and thoroughly

reviewed with his attorney the plea form submitted, that he

had signed and initialed the document, and that he had no

questions about it.8

What about the “14 year, 4 month maximum promised by

the government,” Maj. Op. at 22, relied upon so heavily by

the majority? Such a promise is a figment of the majority’s

7

Based on the judge’s statements at the plea hearing, it appears that

“STC” stands for “sentence for the court.”

8

Because the majority and I cannot seem to agree on the basic facts of

what was said at the plea hearing on December 8, 2005, I attach the

transcript of that hearing as Appendix B to my dissent.

CUERO V. CATE 33

imagination. The only statement signed by the prosecutor on

the change of plea form was the following: “The People of

the State of California, plaintiff, by its attorney, the District

Attorney for the County of San Diego, concurs with the

defendant’s plea of Guilty/No Contest as set forth above.”

Appendix A at 3. And at the hearing prosecutor Kristian

Trocha said three words before Cuero entered his plea. Those

words were “Kristian Trocha” to identify himself in his initial

appearance, and “Yes” in the context of the following

exchange:

THE COURT: It is a sentence for the court,

no deals with the People. His maximum

exposure is 14 years, 4 months in state prison,

4 years on parole and a $10,000 fine. That’s

the most he could receive by way of this plea;

true, Mr. Tamayo?

MR. TAMAYO: It is.

THE COURT: Mr. Trocha?

[MR. TROCHA9]: Yes.

See Appendix B at 1, 2 (emphasis added). Thus, the court

confirmed that there were “no deals with the People.” And

the prosecutor did not promise to refrain from ever doing

9

The transcript actually says that someone named Dan Rodriguez said

“Yes.” Appendix B at 2. The record does not indicate who Dan

Rodriguez is, so the court of appeal could easily have concluded that the

prosecutor only said his name before Cuero entered his plea. Because it

does not matter for purposes of this dissent, I assume that this was a

transcription error and that Mr. Trocha was the person who responded to

the court.

34 CUERO V. CATE

anything, such as amending the complaint, that would result

in a longer sentence. He simply agreed, as a descriptive

matter, that 14 years, 4 months, was the maximum prison

term Cuero was facing at the time.10

Both Cuero’s appellate counsel’s brief and the California

Court of Appeal’s decision imply that the initial plea was not

induced by a plea agreement. In his brief on appeal, Cuero’s

counsel stated that Cuero initially “pled guilty,” with no

mention of a plea agreement. In contrast, the brief states that

the second guilty plea was made “pursuant to a plea

agreement” and sets forth the terms of the charge bargain.

Similarly, the Court of Appeal refers to the initial “guilty

pleas” and the subsequent “negotiated guilty plea,” which

strongly implies that the court of appeal determined that no

10

The majority suggests that, in the plea hearing, the State

(1) “identified [the document in Appendix A] as the written plea

agreement,” Maj. Op. at 14–15 n.9; (2) “stood before Judge Ervin and

expressed [its] intent to ‘settle this case today,’” Maj. Op. at 11; and

(3) “assented” “that the plea agreement was as to the charge and not to the

specific sentence,” Maj. Op. at 11–12. It simply did not. See Appendix

B. Nowhere in the attached transcript will the reader find the statements

that the majority ascribes to the State. One will search in vain for any

reference by the Deputy District Attorney, or by the Deputy Public

Defender, for that matter, to a “plea agreement.”

The majority reasonably notes that the superior court referred to a

“plea agreement,” and it reasonably speculates that a “charge bargain”

existed and that Cuero believed he would never face more than 14 years,

4 months in prison. But the record contains no promise or agreement by

the State to drop any charges or to refrain from amending the complaint.

In that regard, the majority confuses actions taken after the plea was

accepted with promises to take such actions. Trocha moved to “[d]ismiss

in light of the plea.” Appendix B at 8. But the State never indicated, in

either the change of plea form or the plea hearing, that such dismissal was

required by the terms of any agreement.

CUERO V. CATE 35

plea agreement existed for the initial plea. Such

determination would not constitute an unreasonable

determination of the facts.

Given Cuero’s express declaration that he was not

“induced to enter this plea by any promise or representation

of any kind” and that there were no deals with the People, a

fairminded jurist could readily conclude that the government

did not promise Cuero anything, let alone that it would never

amend its complaint.

B

Even if there were a plea agreement with terms that

prohibited the State from amending its complaint, Cuero

would still need to show that, under the Supreme Court’s

holdings at the time of the California Court of Appeal’s

decision, a fairminded jurist could not possibly conclude

either that the plea agreement lacked constitutional

significance before the entry of judgment or that rescission

was a constitutionally acceptable remedy for a breach of the

plea agreement.

In his briefing before our Court, Cuero contends that the

California Court of Appeal’s decision was an objectively

unreasonable application of Santobello v. New York, 404 U.S.

257 (1971). Apparently unsatisfied with the arguments that

Cuero made on his own behalf, the majority regrettably adds

some selective quotation of Mabry v. Johnson, 467 U.S. 504

(1984), and Ricketts v. Adamson, 483 U.S. 1 (1987), to

36 CUERO V. CATE

support its grant of the writ.11 I respectfully suggest that the

Court of Appeal’s decision was neither contrary to, nor an

unreasonable application of, Santobello, Johnson, or

Adamson.

1

In Santobello, the Supreme Court addressed “whether the

State’s failure to keep a commitment concerning the sentence

recommendation on a guilty plea required a new trial.”

404 U.S. at 257–58. There, as part of a plea bargain, the

prosecution had agreed to make no recommendation as to the

sentence, and Santobello had agreed to plead guilty to a

lesser-included offense. Id. at 258. At sentencing, the

prosecutor instead recommended the maximum sentence,

which the judge imposed. Id. at 259–60. Upon certiorari, the

Court vacated and remanded for the state court to consider the

appropriate remedy for breach of the agreement. Id. at

262–63.

As part of its reasoning, the Court indeed made the broad

statement upon which the majority relies: “[W]hen a plea

rests in any significant degree on a promise or agreement of

the prosecutor, so that it can be said to be part of the

inducement or consideration, such promise must be fulfilled.”

Id. at 262.

11

The majority’s opinion, like much of our circuit precedent, vacillates

between conclusions under the “contrary to” and “unreasonable

application of” clauses of § 2254(d)(1). Maj. Op. at 10, 15 (“contrary

to”); Maj. Op. at 15, 19 (“unreasonable application of”). We should be

more precise. The “‘contrary to’ and ‘unreasonable application of’

clauses in § 2254(d)(1) are distinct and have separate meanings.” Moses

v. Payne, 555 F.3d 742, 751 (9th Cir. 2009) (citing Andrade, 538 U.S. at

73–75).

CUERO V. CATE 37

However, this general, isolated statement does not, by

itself, constitute the entire holding of Santobello.12 With

respect to the proper remedy for the government’s breach, the

Court remanded to the state court and held:

The ultimate relief to which petitioner is

entitled we leave to the discretion of the state

court, which is in a better position to decide

whether the circumstances of this case require

only that there be specific performance of the

agreement on the plea, in which case

petitioner should be resentenced by a different

judge, or whether, in the view of the state

court, the circumstances require granting the

relief sought by petitioner, i.e., the

opportunity to withdraw his plea of guilty.

Id. at 262–63. The Court noted that if “the state court decides

to allow withdrawal of the plea, the petitioner will, of course,

plead anew to the original charge on two felony counts.” Id.

at 263 n.2.

Thus, contrary to the majority’s analysis, the Court in

Santobello did not hold that literally every plea agreement

offered by the prosecution and accepted by the defendant is

enforceable by specific performance. Rather, the Court held

that, when a trial court’s judgment of conviction is based on

a plea induced by a promise later broken by the state, the

judgment must be vacated. The Court further held that the

12

Accurate identification of the Supreme Court’s holdings is a critical

step in our analysis under 28 U.S.C. § 2254(d)(1) because “clearly

established Federal law” includes only the holdings, as opposed to the

dicta, of the Supreme Court’s decisions. See Donald, 135 S. Ct. at 1376.

38 CUERO V. CATE

ultimate relief would be left “to the discretion of the state

court, which [was] in a better position to decide whether the

circumstances of [the] case” required specific performance or

withdrawal of the guilty plea. Id. at 263.

2

The majority’s grant of the petition rests entirely on the

premise that “[u]nder clearly established Supreme Court law,

Cuero stood convicted and his plea agreement became

binding the moment the first Superior Court judge accepted

his guilty plea.” Maj. Op. at 8–9. Johnson undercuts such

premise.

In Johnson, the Supreme Court addressed “whether a

defendant’s acceptance of a prosecutor’s proposed plea

bargain creates a constitutional right to have the bargain

specifically enforced.” 467 U.S. at 505. There, the

prosecutor proposed that, in exchange for a plea of guilty, the

prosecutor would recommend a 21-year sentence served

concurrently with other sentences. Id. at 505–06. When the

defendant’s counsel called the prosecutor and communicated

acceptance of the offer, the prosecutor told defense counsel

“that a mistake had been made and withdrew the offer.” Id.

at 506. The prosecutor then made a second offer to

recommend a 21-year sentence to be served consecutively to

the other sentences, which the defendant ultimately accepted.

Id. “In accordance with the plea bargain, the state trial judge

imposed a 21-year sentence to be served consecutively to the

previous sentences.” Id.

In its analysis, the Court reasoned:

CUERO V. CATE 39

A plea bargain standing alone is without

constitutional significance; in itself it is a

mere executory agreement which, until

embodied in the judgment of a court, does not

deprive an accused of liberty or any other

constitutionally protected interest. It is the

ensuing guilty plea that implicates the

Constitution. Only after respondent pleaded

guilty was he convicted, and it is that

conviction which gave rise to the deprivation

of respondent’s liberty at issue here.

Id. at 507–08 (footnote omitted). The majority completely

ignores the reasonable conclusion that a fairminded jurist

could draw from the first sentence of this passage: a “plea

bargain . . . is without constitutional significance . . . until

embodied in the judgment of a court.” Id.13 In other words,

it is the judgment, not the acceptance of a guilty plea, that

“seals the deal between the state and the defendant.” Contra

Maj. Op. at 9.14

13

The majority distorts this passage by selectively pairing three words

from the second sentence with three words from the first sentence: “A

defendant’s guilty plea thus ‘implicates the Constitution,’ transforming the

plea bargain from a ‘mere executory agreement’ into a binding contract.”

Maj. Op. at 9. However, such tortured paraphrasing does not remotely

reflect the passage above or the holding of Johnson.

14

Some confusion could arise from the Court’s use of “convicted” and

“conviction” in this passage and in Boykin v. Alabama, 395 U.S. 238, 242

(1969), upon which the majority relies. I note that the word “conviction”

has multiple meanings about which fairminded jurists can disagree. “It is

certainly correct that the word ‘conviction’ can mean either the finding of

guilt or the entry of a final judgment on that finding.” Deal v. United

States, 508 U.S. 129, 131 (1993); see also id. at 143–46 (Stevens, J.,

dissenting). Here, the Supreme Court used “conviction” in the latter

40 CUERO V. CATE

The Johnson Court further explained that “only when it

develops that the defendant was not fairly apprised of its

consequences can his plea be challenged under the Due

Process Clause.” 467 U.S. at 509. The Court then applied

that rule:

[Johnson’s] plea was in no sense induced by

the prosecutor’s withdrawn offer; unlike

Santobello, who pleaded guilty thinking he

had bargained for a specific prosecutorial

sentencing recommendation which was not

ultimately made, at the time respondent

pleaded guilty he knew the prosecution would

recommend a 21-year consecutive sentence.

[Johnson] does not challenge the District

Court’s finding that he pleaded guilty with the

advice of competent counsel and with full

awareness of the consequences—he knew that

the prosecutor would recommend and that the

judge could impose the sentence now under

attack.

Id. at 510.

The Court concluded that Johnson’s “inability to enforce

the prosecutor’s offer is without constitutional significance.”

Id. Johnson “was not deprived of his liberty in any

sense, i.e. the entry of a final judgment on a finding of guilt. Having just

stated that a plea bargain “does not deprive an accused of liberty or any

other constitutionally protected interest” “until embodied in the judgment

of a court,” the Court did not state two sentences later that a guilty plea

gives rise to the deprivation of a defendant’s liberty before the entry of

judgment. And, even if this understanding of the Court’s use of

“conviction” in Johnson is wrong, it is not objectively unreasonable.

CUERO V. CATE 41

fundamentally unfair way. [He] was fully aware of the likely

consequences when he pleaded guilty; it is not unfair to

expect him to live with those consequences now.” Id. at 511.

Thus, the Court in Johnson held that a defendant’s

inability to enforce a plea offer withdrawn before the entry of

judgment is without constitutional significance, not that every

breach of a plea agreement after a guilty plea violates the

Constitution. Consequently, there is no due process violation

so long as the prosecution fulfills the promises that induced

the plea upon which the judgment of conviction is based.

More importantly, Johnson clarified the holding in

Santobello. The Court noted that “Santobello expressly

declined to hold that the Constitution compels specific

performance of a broken prosecutorial promise as the remedy

for such a plea” and that “permitting Santobello to replead

was within the range of constitutionally appropriate

remedies.” Id. at 510–11 n.11 (citing Santobello, 404 U.S. at

262–63; id. at 268–69 (Marshall, J., concurring in part and

dissenting in part)). “It follows that [Johnson’s]

constitutional rights could not have been violated. Because

he pleaded after the prosecution had breached its ‘promise’ to

him, he was in no worse position than Santobello would have

been had he been permitted to replead.” Id.

3

The majority also concludes, erroneously, that the state

court was “constitutionally obligated to construe the

agreement in accordance with state contract law” and that a

“state court must supply a remedy for a breached plea

agreement that comports with state contract law.” Maj. Op.

at 18, 20. Although the majority relies heavily on Adamson

42 CUERO V. CATE

for these propositions, I respectfully suggest that case does

not support, let alone require, such conclusions.

In Adamson, the Supreme Court addressed “whether the

Double Jeopardy Clause bars the prosecution of [a defendant]

for first-degree murder following his breach of a plea

agreement under which he had pleaded guilty to a lesser

offense, had been sentenced, and had begun serving a term of

imprisonment.” Adamson, 483 U.S. at 3.15 There, the

Arizona Supreme Court held that a written plea agreement16

required Adamson to testify at the retrial of the other two

individuals, that he violated the terms of the plea agreement

by refusing to testify at the retrials, and that the terms of the

plea agreement required the original first-degree murder

charge to be reinstated automatically. Id. at 5. The Supreme

Court held that the subsequent prosecution did not violate the

Double Jeopardy Clause. It reasoned that “terms of the

agreement could not be clearer: in the event of [Adamson’s]

breach occasioned by a refusal to testify, the parties would be

returned to the status quo ante, in which case [Adamson]

would have no double jeopardy defense to waive.” Id. at 10.

Thus, the Court held in Adamson that the Double Jeopardy

Clause does not bar a state from vacating a judgment of

conviction and reinstating criminal charges pursuant to the

express terms of a plea agreement.

15

Given this description, one might get the sense that the holding of

Adamson is unlikely to bear on the instant case.

16

Our Court published the entirety of the eighteen-paragraph plea

agreement in an appendix. See Adamson v. Ricketts, 789 F.2d 722,

731–33 (9th Cir. 1986), rev’d, 483 U.S. 1. Contrast that plea agreement

with the change of plea form in this case, which expressly states that there

was no plea agreement. See Appendix A at 1 ¶ 2.

CUERO V. CATE 43

The majority does not rely on the holding of Adamson for

its erroneous propositions, but rather on part of a sentence in

dictum contained in a footnote of the Court’s opinion. In

footnote 3, the Court addressed Adamson’s contention that

the Arizona Supreme Court had misconstrued the terms of the

plea agreement:

We will not second-guess the Arizona

Supreme Court’s construction of the language

of the plea agreement. While we assess

independently the plea agreement’s effect on

respondent’s double jeopardy rights, the

construction of the plea agreement and the

concomitant obligations flowing therefrom

are, within broad bounds of reasonableness,

matters of state law, and we will not disturb

the Arizona Supreme Court’s reasonable

disposition of those issues. The dissent’s

discourse on the law of contracts is thus

illuminating but irrelevant. The questions

whether the plea agreement obligated the

respondent to testify at the retrial of Dunlap

and Robison and, if so, whether the

respondent breached this duty are matters

appropriately left to the state courts. . . .

Adamson, 483 U.S. at 6 n.3 (emphasis added to the clause

upon which the majority relies). As the Supreme Court

eloquently once stated in an unrelated context: “Most

importantly, the statement is pure dictum. It is dictum

contained in a rebuttal to a counterargument. And it is

unnecessary dictum even in that respect.” Kirtsaeng v. John

Wiley & Sons, Inc., 133 S. Ct. 1351, 1368 (2013).

44 CUERO V. CATE

Even if not dictum, the footnote has been misinterpreted

by the majority. The majority, consistent with precedent of

our circuit,17 focuses solely on the statement that “the

construction of the plea agreement and the concomitant

obligations flowing therefrom are, within broad bounds of

reasonableness, matters of state law.” Maj. Op. at 15.

However, in context it is clear that the Supreme Court was

not stating that state courts are “constitutionally obligated to

construe the agreement in accordance with state contract law”

and that they violate the Constitution by failing to do so.

Maj. Op. at 18. And the footnote does not remotely support

the contention that a state court violates the Constitution if it

does not “supply a remedy for a breached plea agreement that

comports with state contract law.” Maj. Op. at 20. Quite the

opposite. Respecting important interests of federalism and

comity, the Court explained that the construction of plea

agreements and whether a breach has occurred are matters of

state law which are “appropriately left to the state courts.”

Adamson, 483 U.S. at 6–7 n.3. Federal courts must not

“second-guess[] the finding of a breach” and they have no

“license to substitute a federal interpretation of the terms of

a plea agreement for a reasonable state interpretation.” Id.

Thus, the Adamson footnote, upon which the majority relies,

is about deference to state courts, not about imposing new

constitutional requirements on state courts.

17

Buckley v. Terhune, 441 F.3d 688, 694–95 (9th Cir. 2006) (en banc);

Davis v. Woodford, 446 F.3d 957, 962 (9th Cir. 2006). As discussed

below, we should not follow these decisions because they are

irreconcilable with intervening decisions of the Supreme Court. See infra

note 20.

CUERO V. CATE 45

C

The California Court of Appeal’s decision was not

“contrary to” Santobello, Johnson, or Adamson. “Because

none of [the Supreme Court’s] cases confront ‘the specific

question presented by this case,’ the state court’s decision

could not be ‘contrary to’ any holding from” the Supreme

Court. Donald, 135 S. Ct. at 1377 (quoting Lopez v. Smith,

135 U.S. 1, 4 (2014) (per curiam)).

In Santobello, the defendant pleaded guilty in reliance

upon the promises in the prosecution’s original offer, the

prosecution broke a promise contained in its original offer,

and the court entered judgment on the basis of the plea

induced by the unfulfilled promise. Unlike Santobello, here

the superior court’s judgment was not entered on the basis of

the initial plea, purportedly induced by unfulfilled promises.

Rather, judgment was entered on the basis of the subsequent

plea, which was induced by promises that have been fulfilled.

In Johnson, the prosecution withdrew its original offer before

the defendant pleaded guilty. Unlike Johnson, here the

prosecutor purportedly breached a plea agreement after the

defendant pleaded guilty. Finally, Adamson does not

remotely resemble this case. There, the defendant breached

his plea bargain, and the question was whether or not the

Double Jeopardy Clause prohibited the state from vacating

the conviction and reinstating criminal charges.

Therefore, Santobello, Johnson, and Adamson do not

address the specific question presented by this case: whether

the Constitution requires specific performance of a plea

bargain after a defendant has pleaded guilty but before the

court has entered judgment. As a result, the state court’s

46 CUERO V. CATE

decision could not be “contrary to” any holding from the

Supreme Court. See Donald, 135 S. Ct. at 1377.

D

Nor was the California Court of Appeal’s decision an

“unreasonable application of” the Court’s holdings in

Santobello, Johnson, and Adamson. As discussed above,

fairminded jurists could easily conclude that Cuero’s initial

plea did not rest “on a promise or agreement of the

prosecutor, so that it can be said to be part of the inducement

or consideration.” Santobello, 404 U.S. at 262; see Appendix

A at 1 ¶ 2 (“I have not been induced to enter this plea by any

promise or representation of any kind, except: . . . NO

DEALS W/ PEOPLE.”).18

Even assuming that the State did make a promise not to

amend its complaint, fairminded jurists could readily

conclude that, under Johnson, Cuero’s inability to enforce the

original plea agreement, which was withdrawn before the

entry of judgment, is “without constitutional significance.”

Johnson, 467 U.S. at 507–08, 510. Moreover, fairminded

jurists could conclude that, if the prosecution did breach some

binding agreement with Cuero, “permitting [Cuero] to replead

was within the range of constitutionally appropriate

18

Without any plea agreement to construe, Adamson’s purported

requirement to construe the plea agreement in accordance with state

contract law has no application here.

CUERO V. CATE 47

remedies.” Johnson, 467 U.S. at 510–11 n.11 (explaining

Santobello); Santobello, 404 U.S. at 263 & n.2.19

Therefore, the state court’s ruling on the claim presented

here was not “so lacking in justification that there was an

error well understood and comprehended in existing law

beyond any possibility for fairminded disagreement.”

Richter, 562 U.S. at 103. As a result, the state court’s ruling

was not an unreasonable application of Santobello, Johnson,

or Adamson.

IV

Perhaps the majority’s faulty analysis can best be

explained by its erroneous reliance on (1) perceived errors of

state law; (2) circuit precedent (to bridge the gap between the

Supreme Court’s holdings and this case); (3) a Supreme

Court decision that post-dates the California Court of

Appeal’s decision; and (4) issues of law framed at the highest

levels of generality. Making matters worse, the majority

misconstrues many of the sources of law upon which it

improperly relies.

A

1

The majority erroneously relies on perceived errors of

state law. Maj. Op. at 15–22 & n.10; see Swarthout v. Cooke,

19

Adamson indirectly reinforces this conclusion with its repeated

emphasis that returning the defendant to the status quo ante—i.e.,

restoring his trial rights fully—resulted in no double jeopardy violation.

See Adamson, 483 U.S. at 10–11.

48 CUERO V. CATE

562 U.S. 216, 219–22 (2011) (per curiam); Wilson v.

Corcoran, 562 U.S. 1, 5 (2010) (per curiam); Estelle v.

McGuire, 502 U.S. 62, 67 (1991); Lewis v. Jeffers, 497 U.S.

764, 780 (1990); Pulley v. Harris, 465 U.S. 37, 41 (1984);

Rose v. Hodges, 423 U.S. 19, 21–22 (1975) (per curiam).

Specifically, it holds that the writ must issue because the

state court failed “to interpret Cuero’s plea agreement

consistently with California contract law” and failed to

“supply a remedy for a breached plea agreement that

comports with state contract law.” Maj. Op. at 20. “But it is

only noncompliance with federal law that renders a State’s

criminal judgment susceptible to collateral attack in the

federal courts. The habeas statute unambiguously provides

that a federal court may issue the writ to a state prisoner ‘only

on the ground that he is in custody in violation of the

Constitution or laws or treaties of the United States.’”

Corcoran, 562 U.S. at 5 (quoting 28 U.S.C. § 2254(a)). The

Supreme Court has “repeatedly held that ‘federal habeas

corpus relief does not lie for errors of state law.’” Id. (quoting

McGuire, 502 U.S. at 67). “It is not the province of a federal

habeas court to reexamine state-court determinations on state-

law questions.” Id. (quoting McGuire, 502 U.S. at 67–68)

(alteration omitted).

The majority protests that these cases “do not speak to the

situation where, as here, the Supreme Court has clearly held

that the federal constitutional due process right is itself

defined by reference to principles of state law.” Maj. Op. at

16 n.10. One would expect a citation to Supreme Court

precedent to follow such a strong statement, but none exists.

The majority cites our Buckley case, which cites Adamson.

Maj. Op. at 16 n.10. But Adamson held no such thing. In

fact, Adamson does not contain the words “due process”

CUERO V. CATE 49

anywhere in the Court’s opinion. “No opinion of [the

Supreme Court] supports converting California’s [contract

law] into a substantive federal requirement.” Cooke,

562 U.S. at 220–21.20

2

Even if the court could grant habeas relief on the basis of

state law, the majority misconstrues California state law.

California state law did not prohibit the second

amendment of the complaint. Several provisions of the

California Penal Code expressly permit a prosecutor to amend

an information or complaint. See Cal. Penal Code §§ 969a,

969.5(a), 1009. “Under section 1009, the People may amend

an information without leave of court prior to entry of a

defendant’s plea, and the trial court may permit an

amendment of an information at any stage of the

proceedings.” People v. Lettice, 163 Cal. Rptr. 3d 862, 868

(Ct. App. 2013). Sections 969a and 969.5(a) specifically deal

with amendment of the complaint to add allegations of prior

felonies, and § 969.5(a), upon which the State relied,

addresses amendment of a complaint after a guilty plea:

20

Just as we did in Cooke, our Court in Brown v. Poole, 337 F.3d 1155

(2003), Buckley, and Davis relied upon a perceived error of state law to

conclude that the federal Due Process Clause was violated. Accordingly,

with respect to its analysis regarding the required remedy, the reasoning

of these cases has been undermined to the point that it is clearly

irreconcilable with Corcoran and Cooke. See Lair v. Bullock, 798 F.3d

736, 745 (9th Cir. 2015) (citing Miller v. Gammie, 335 F.3d 889, 892–93

(9th Cir. 2003) (en banc)). Brown, Buckley, and Davis are of no help to

the majority’s analysis.

50 CUERO V. CATE

Whenever it shall be discovered that a

pending complaint to which a plea of guilty

has been made under Section 859a does not

charge all prior felonies of which the

defendant has been convicted either in this

state or elsewhere, the complaint may be

forthwith amended to charge the prior

conviction or convictions and the amendments

may and shall be made upon order of the

court.

Cal. Penal Code § 969.5(a). None of these statutes indicate

that a prosecutor’s ability to amend the information is limited

to situations in which a plea agreement has been entered.

In People v. Valladoli, the California Supreme Court

interpreted both § 969a and former § 969 ½ in determining

whether an information could be amended to allege prior

felonies after a defendant was found guilty at trial. 918 P.2d

999 (Cal. 1996). Discussing former § 969 ½, the predecessor

to § 969.5(a), the court said that if the defendant had “pleaded

guilty before the magistrate under section 859a, . . . the

express terms of section 969 ½ would have permitted the

People to amend the information to charge his prior

convictions after the guilty plea.” Id. at 1005; see also

People v. Tindall, 14 P.3d 207, 212 (Cal. 2000) (citing

Valladoli for this proposition). The court continued, “An

obvious motivating force underlying section 969 ½ is to

prevent one accused of a crime from quickly pleading guilty

before a magistrate and thereby limiting the amount of time

the prosecutor has to investigate, discover, and charge the

accused’s prior felony convictions.” Valladoli, 918 P.2d at

1005.

CUERO V. CATE 51

Thus, the state statutory scheme and Valladoli permit a

prosecutor to request to file an amended complaint to allege

prior convictions after entering a plea agreement. The

majority fails to cite any California case which has

definitively held that a prosecutor may not amend a complaint

after the court accepts a plea agreement.21

Ultimately, the Supreme Court has “repeatedly held that

a state court’s interpretation of state law, including one

announced on direct appeal of the challenged conviction,

binds a federal court sitting in habeas corpus.” Bradshaw v.

Richey, 546 U.S. 74, 76 (2005) (per curiam). Here, both the

superior court and the appellate court determined that

amendment of the complaint was permissible under state law.

We must defer to those interpretations and conclude that there

was no error of state law. Rather than deferring, the

majority’s decision severely undermines the California

Legislature’s determination, in enacting sections 969.5(a) and

1009, that prosecutors should have the ability, with the

approval of the court, to amend a complaint after a plea to

allege all prior felonies.

21

In Lettice, the California Court of Appeal was presented with a case

similar to this one, but did not decide this issue. On appeal, because the

defendant did not argue that the prosecutor was precluded from filing an

amended information after entering the plea agreement, the court of appeal

expressly did not decide that issue. Lettice, 163 Cal. Rptr. 3d at 871 n.12.

The court of appeal remanded to the superior court with instructions to

exercise its discretion to determine whether to permit the amendment of

the complaint. Id. at 873.

52 CUERO V. CATE

B

1

The majority erroneously relies (heavily) on circuit

precedent to bridge the gap between the Supreme Court’s

cases and this one. See Glebe v. Frost, 135 S. Ct. 429, 431

(2014) (per curiam); Lopez v. Smith, 135 S. Ct. 1, 4 (2014)

(per curiam); Marshall v. Rodgers, 133 S. Ct. 1446, 1450–51

(2013) (per curiam); Parker v. Matthews, 132 S. Ct. 2148,

2155–56 (2012) (per curiam); Renico v. Lett, 559 U.S. 766,

778–79 (2010).

Specifically, the majority relies on circuit precedent for

the following propositions, which are not supported by the

Supreme Court’s decisions:

(1) The “federal constitutional due process

right is itself defined by reference to

principles of state law,” Maj. Op. at 16

n.10 (citing Buckley, 441 F.3d at 695); a

state court is “constitutionally obligated to

construe the [plea] agreement in

accordance with state contract law.” Maj.

Op. at 18 (citing Buckley, 441 F.3d at

696); “[u]nder AEDPA, we . . . must

consider whether the [state court] decision

is consistent with a proper application of

state contract law in interpreting the plea

agreement . . . .” Maj. Op. at 15 (quoting

Davis, 446 F.3d at 962).

(2) “[W]here the state has already received

the benefit it bargained for—a plea of

CUERO V. CATE 53

guilty and a conviction—specific

performance is the best remedy, unless the

defendant, whose choice it becomes,

‘elect[s] instead to rescind the agreement

and take his chances from there.’” Maj.

Op. at 20 (quoting Buckley, 441 F.3d at

699 n.11).

(3) “Because Cuero had already performed,

‘fundamental fairness demands that the

state be compelled to adhere to the

agreement as well.’” Maj. Op. at 21

(quoting Brown, 337 F.3d at 1162).

Take the first proposition. As discussed above, Adamson

does not even contain the words “due process,” so the notion

that the “federal constitutional due process right is itself

defined by reference to principles of state law” comes solely

from Buckley. Similarly, footnote 3 of Adamson says nothing

about state contract law. See Adamson, 483 U.S. at 6 n.3

(construction and breach determinations are “matters of state

law”). So the majority’s restriction of the relevant state law

to contract law comes solely from circuit precedent in

Buckley and Davis. See, e.g., Maj. Op. at 18 n.12 (rejecting

argument under § 969.5(a) because that section “is irrelevant

to the interpretation of a court-approved plea agreement under

state contract principles”). Finally, no Supreme Court

decisions remotely support the notion that specific

performance is required when a defendant has pleaded guilty

and the court has accepted that plea. Such notions are

inventions of our circuit.

The Supreme Court has “repeatedly emphasized [that]

circuit precedent does not constitute ‘clearly established

54 CUERO V. CATE

Federal law, as determined by the Supreme Court.’” Frost,

135 S. Ct. at 431 (quoting 28 U.S.C. § 2254(d)(1)). “It

therefore cannot form the basis for habeas relief under

AEDPA.” Matthews, 132 S. Ct. at 2155. And “Circuit

precedent cannot ‘refine or sharpen a general principle of

Supreme Court jurisprudence into a specific legal rule that

[the Supreme Court] has not announced.’” Smith, 135 S. Ct.

at 4 (quoting Rodgers, 133 S. Ct. at 1450). In the past three

years, the Supreme Court has caught us three times trying to

evade this rule. See Frost, 135 S. Ct. at 431 (“The Ninth

Circuit acknowledged this rule, but tried to get past it . . . .”);

Smith, 135 S. Ct. at 4 (“The Ninth Circuit attempted to evade

this barrier . . . .”); Rodgers, 133 S. Ct. at 1450–51. It is

unwise to think that we will slip through this time around.

2

Even if the majority could properly rely on our decisions

in Brown, Buckley, and Davis, those cases not compel the

conclusion that the majority reaches.

For instance, Brown and Buckley acknowledged that there

are “two available remedies at law for the breach of [a] plea

agreement: withdrawal of [the] plea (i.e., rescission of the

contract) and specific performance.” Buckley, 441 F.3d at

699; Brown, 337 F.3d at 1161. In choosing between those

remedies in Buckley, the en banc court “express[ed] no view

on what the proper remedy would be in a case with other

facts.” Id. at 699 n.11.

Cuero’s circumstances are readily distinguishable from

those in Brown and Buckley. In both cases, we ordered

specific performance because rescission of the contract was

“impossible” under the circumstances and the petitioners

CUERO V. CATE 55

could not “conceivably be returned to the status quo ante.”

Brown, 337 F.3d at 1161; Buckley, 441 F.3d at 699. The

petitioners had “paid in a coin that the state cannot refund” by

testifying and/or serving their bargained-for sentences.

Buckley, 441 F.3d at 699 (quoting Brown, 337 F.3d at 1161).

Here, when the superior court granted permission to amend

the complaint, Cuero had not performed in a way that could

not be undone. Instead, to the extent Cuero had performed,

the “coin” he paid was fully refunded when his relinquished

trial rights were fully restored. Thus, specific performance

was not required by our precedents because rescission was

still possible for Cuero.

In addition, Cuero’s case differs from Davis, Buckley, and

Brown because the petitioners were incarcerated on the basis

of pleas induced by plea agreements that the state breached.

See Davis, 446 F.3d at 959–63; Buckley, 441 F.3d at 691–93;

Brown, 337 F.3d at 1157–58. Thus, those cases were much

closer to Santobello. Here, the initial plea, purportedly

induced by a plea agreement which the state breached, was

withdrawn and does not form the basis of Cuero’s

incarceration. Cuero’s case is much closer to Johnson. He

“was not deprived of his liberty in any fundamentally unfair

way. [He] was fully aware of the likely consequences when

he pleaded guilty; it is not unfair to expect him to live with

those consequences now.” Johnson, 467 U.S. at 511.

C

1

The majority erroneously relies upon a Supreme Court

opinion—and numerous other authorities—issued after all of

the state court decisions that related to Cuero. See Greene v.

56 CUERO V. CATE

Fisher, 132 S. Ct. 38, 44–45 (2011); Cullen v. Pinholster,

563 U.S. 170, 182 (2011); Andrade, 538 U.S. at 71–72; see

also Woodall, 134 S. Ct. at 1706.

Specifically, the panel relies on Puckett v. United States,

556 U.S. 129 (2009), for the following propositions:

(1) “A state court must supply a remedy for a

breached plea agreement that comports

with state contract law.” Maj. Op. at 20

(citing Puckett, 556 U.S. at 137).22

(2) The purported breach of Cuero’s plea

agreement was “undoubtedly a violation

of the defendant’s rights.” Maj. Op. at 6

(quoting Puckett, 556 U.S. at 136).

(3) “[P]lea bargains are essentially contracts.”

Maj. Op. at 15 (quoting Puckett, 556 U.S.

at 137).

Section 2254(d)(1) “requires federal courts to focus on what

a state court knew and did, and to measure state-court

decisions against [the Supreme Court’s] precedents as of the

time the state court renders its decision.” Greene, 132 S. Ct.

at 44 (internal alteration and quotation marks omitted)

(emphasis in original). “Obviously, a state-court decision

cannot be contrary to clearly established Federal law that was

not yet in existence.” Murray, 745 F.3d at 997. Thus,

22

The majority also cites Adamson, 483 U.S. at 5 n.3, and Davis,

446 F.3d at 962, for this proposition. Maj. Op. at 20. None of the

authorities cited support the majority’s contention, let alone clearly

establish such contention.

CUERO V. CATE 57

because Puckett was issued after the California Court of

Appeal’s decision, it was not “clearly established Federal

law” at the time the state court rendered its decision.

Consequently, the majority cannot rely on Puckett.

The majority also relies on a number of other authorities

issued after the state court’s decision to state the principles of

law that the state court should have applied. See Maj. Op. at

9 (relying on Doe v. Harris, 640 F.3d 972, 975 (9th Cir.

2011)); id. at 16 (relying on People v. Segura, 188 P.3d 649,

656 (Cal. 2008)); id. at 17 (relying on Sateriale v. R.J.

Reynolds Tobacco Co., 697 F.3d 777, 791 (9th Cir. 2012));

id. at 20 (relying on In re Timothy N., 157 Cal. Rptr. 3d 78,

88 (Ct. App. 2013)); id. at 20–21 n.14 (relying on 5 Wayne R.

LaFave et al., Criminal Procedure § 21.2(e) (4th ed. 2015)).

This reliance, too, was impermissible, for the state court

cannot be expected to apply rules of law stated in authorities

not yet in existence.

2

Even if the majority could rely on Puckett, that case

cannot support the weight of the majority’s argument.

The Supreme Court in Puckett stated that “[w]hen a

defendant agrees to a plea bargain, the Government takes on

certain obligations. If those obligations are not met, the

defendant is entitled to seek a remedy, which might in some

cases be rescission of the agreement, allowing him to take

back the consideration he has furnished, i.e., to withdraw his

plea.” 556 U.S. at 137. Clearly, withdrawal of the plea is a

constitutionally permissible remedy, and Cuero received that

remedy. The Puckett Court did not remotely suggest that the

determination of which remedy to afford is a matter of state

58 CUERO V. CATE

contract law. Also, the Puckett Court acknowledged that,

although “plea bargains are essentially contracts,” “the

analogy may not hold in all respects.” Id. This undermines

the majority’s proposition that only state contract law can be

used to determine whether amendment of the complaint was

permitted.

D

Finally, the majority erroneously frames legal issues at

the highest levels of generality. See Donald, 135 S. Ct. at

1377; Smith, 135 S. Ct. at 4; Nevada v. Jackson, 133 S. Ct.

1990, 1994 (2013) (per curiam); cf. City & County of San

Francisco v. Sheehan, 135 S. Ct. 1765, 1775–76 (2015) (“We

have repeatedly told courts—and the Ninth Circuit in

particular—not to define clearly established law at a high

level of generality.” (quoting Ashcroft v. al-Kidd, 563 U.S.

731, 742 (2011))). “By framing [the Supreme Court’s]

precedents at such a high level of generality, a lower federal

court could transform even the most imaginative extension of

existing case law into ‘clearly established Federal law, as

determined by the Supreme Court.’” Jackson, 133 S. Ct. at

1994 (quoting 28 U.S.C. § 2254(d)(1)). Such an “approach

would defeat the substantial deference that AEDPA requires.”

Id.

The majority can only grant habeas relief if the Supreme

Court’s cases clearly establish that a defendant has a due

process right to specific performance of a plea agreement

before the entry of judgment. But none of the Supreme

Court’s cases addresses that specific issue. See Smith, 135 S.

Ct. at 4.

CUERO V. CATE 59

Instead, the best the majority can do is to point to

Adamson for the general proposition that “the construction of

[a] plea agreement and the concomitant obligations flowing

therefrom are, within broad bounds of reasonableness,

matters of state law.” 483 U.S. at 6 n.3. “This proposition is

far too abstract to establish clearly the specific rule [Cuero]

needs.” Smith, 135 S. Ct. at 4.

The majority treats the door supposedly opened by

Adamson’s general proposition as license to engage freely in

de novo determination of what California contract law

requires, both for the construction of the agreement and the

remedy for a breach. Maj. Op. at 15–22. Again, however, no

California cases establish that specific performance is

required when the State amends its complaint after entry of a

plea but before judgment. As a result, the majority is forced

to frame principles of California law at the highest level of

generality in order to conclude that specific performance is

required. The majority rests its decision on the very general

principle that “the remedy for breach must ‘repair the harm

caused by the breach.’” Maj. Op. at 20 (quoting People v.

Toscano, 20 Cal. Rptr. 3d 923, 927 (Ct. App. 2004)). Such a

general proposition obviously does not establish, under

California law, that specific performance was the only

remedy in this situation that could repair the harm caused by

the breach.

To supply that final conclusion, the majority relies purely

on its own de novo, ipse dixit analysis. Note that the key last

paragraph before its conclusion section contains only a single

citation to a source of law, and that citation does not establish

that specific performance is required here. Ultimately, the

court’s decision rests on its own determinations that it would

be unfair not to require specific performance, Maj. Op. at 21,

60 CUERO V. CATE

and that “specific performance is necessary to maintain the

integrity and fairness of the criminal justice system,” Maj.

Op. at 20–21 n.14.23 These conclusions are not dictated by

state or federal law.

V

For the foregoing reasons, I respectfully conclude that the

majority erroneously orders reversal of the district court and

grant of the writ. In accordance with Supreme Court law, a

fairminded jurist could conclude that Cuero’s plea was not

induced by any promise by the prosecutor. See Appendix A.

Even assuming there was such a promise, a fairminded jurist

could conclude that the plea agreement was without

constitutional significance before the entry of judgment.

And, even if there were a breach of a constitutionally binding

plea agreement, nothing in any Supreme Court decision

clearly establishes that the state court was required to order

specific performance. Thus, the state court’s decision was

neither contrary to, nor an unreasonable application of

“clearly established Federal law.” 28 U.S.C. § 2254(d)(1).

For the foregoing reasons, I respectfully dissent.

23

The majority determines that “specific performance is necessary to

maintain the integrity and fairness of the criminal justice system” on the

basis of a treatise, a 1977 Washington Supreme Court decision, and an

article in the second volume of the now-defunct University of San

Fernando Valley Law Review. Maj. Op. at 20–21 n.14. These hardly

constitute “clearly established Federal law, as determined by the Supreme

Court.” 28 U.S.C. § 2254(d)(1).

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