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. ORDER

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 March 8, 2017

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

and Kim McLane Wardlaw, Circuit Judges.

Order;

Concurrence by Judge Wardlaw;

Dissent by Judge Callahan

2 CUERO V. CATE

SUMMARY*

Habeas Corpus

The panel denied a petition for panel rehearing and, on

behalf of the court, a petition for rehearing en banc, in a case

in which 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 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.

Concurring in the denial of rehearing en banc, Judge

Wardlaw, joined by Judge Silverman, wrote that there is no

need for the dissent’s “sky is falling” rhetoric, as this is the

rare case where the state court’s decision was contrary to

then-clearly established Supreme Court law governing guilty

pleas induced by agreements with the prosecutor.

Judge Callahan, joined by Judges O’Scannlain, Tallman,

Bybee, Bea, M. Smith, and Ikuta, dissented from the denial

of rehearing en banc. She wrote that the three-judge panel

decision is not based on clearly established federal law, as the

Supreme Court has never held that the Due Process Clause

precludes post-plea, pre-judgment amendments to a

complaint; that the Supreme Court has never ordered the

reinstatement of an alleged plea agreement that was not in

effect at the time judgment was entered; and that such an

*

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

exercise of raw federal judiciary power is exactly what the

Antiterrorism and Effective Death Penalty Act prohibits.

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

ORDER

Judges Silverman1 and Wardlaw have voted to deny the

petition for panel rehearing and rehearing en banc. Judge

O’Scannlain has voted to grant the petition for panel

rehearing and rehearing en banc.

The full court was advised of the petition for rehearing en

banc. A judge requested a vote on whether to rehear the

matter en banc. The matter failed to receive a majority of the

votes of the nonrecused active judges in favor of en banc

consideration. Fed. R. App. P. 35.

The petition for panel rehearing and rehearing en banc is

DENIED.

IT IS SO ORDERED.

WARDLAW, Circuit Judge, with whom SILVERMAN,

Circuit Judge, joins, concurring in the denial of rehearing en

banc:

The panel majority opinion speaks for itself. I

respectfully suggest that there is no need for the dissent’s “the

sky is falling” rhetoric. This is the rare case where the state

court’s decision was contrary to then-clearly established

Supreme Court law governing guilty pleas induced by

agreements with the prosecutor. It is no wonder that a

1

Judge O’Scannlain and Judge Silverman both voted on the petition for

rehearing en banc while they were in active status.

CUERO V. CATE 5

majority of our active judges declined to rehear this simple

appeal en banc.

I.

On October 18, 2005, the San Diego County District

Attorney’s Office filed a criminal complaint against Cuero.

The complaint, as amended, charged Cuero with two felonies,

causing great bodily injury to another while driving under the

influence and being a felon in possession of a firearm, as well

as with a misdemeanor charge of being under the influence of

a controlled substance. The state alleged, based on its review

of Cuero’s criminal history, that Cuero had a single strike for

first-degree burglary and three additional prior convictions

resulting in prison terms that did not constitute strikes.

Cuero and the prosecution reached a plea agreement,

which they reduced to writing. Cuero would plead guilty to

the two substantive felony counts listed in the first amended

complaint and admit his four prior convictions. In exchange,

the state would drop the misdemeanor charge from the

complaint. This agreement represented a charge bargain

only, not a sentence bargain.1 As indicated on the plea

1

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. 2016). Sentence

bargains “involve[] an agreement whereby the defendant pleads . . . to the

original charge[] in exchange for some kind of promise from the

prosecutor concerning the sentence to be imposed.” Id. In short, in a

charge bargain the deal relates to the charges the prosecution will bring

and to which the defendant will plead, while in a sentence bargain the

parties reach an agreement over the prosecution’s sentencing

6 CUERO V. CATE

agreement, the parties did not agree to a particular sentence,

leaving sentencing to the court within the maximum statutory

sentence of 14 years, 4 months of incarceration.

On December 8, 2005, Cuero pleaded guilty pursuant to

the terms of the plea deal. During the change-of-plea

proceeding, the court reviewed the plea agreement, signed by

both defense counsel and the state prosecutor, and noted that

the parties had left the “sentence for the Court” and that

Cuero had made no sentencing deals “with the People.” The

court confirmed that Cuero had heard “the plea agreement

that [the court] described,” that it was his “full and complete

understanding of the agreement to settle this case” and that he

“wish[ed] to accept the agreement to this case.” The judge

also explained that “[i]n addition to the plea agreement,” the

document set forth the constitutional rights Cuero

relinquished by pleading guilty.

Cuero fully performed his obligations under the plea

bargain, pleading guilty and waiving his constitutional and

other rights. The government then moved to dismiss the

misdemeanor count “in light of the plea,” carrying out its own

obligation under the agreement. Once Cuero pleaded guilty

to the relevant charges and the prosecution moved to drop the

misdemeanor charge, the trial judge signed the court’s

“Finding and Order” accepting Cuero’s plea and admissions

and concluding that Cuero was “convicted thereby.” The

court scheduled sentencing for January 11, 2006.

While preparing for sentencing, the prosecution

apparently concluded that another of Cuero’s prior

recommendation. This distinction is also reflected in Federal Rule of

Criminal Procedure 11.

CUERO V. CATE 7

convictions constituted a strike. Though the prosecutor was

previously aware of this conviction (as evidenced by the fact

she charged it in the complaint to which Cuero had pleaded

guilty pursuant to the plea deal), she did not initially notice

that the prior conviction could be counted as a strike.

Notwithstanding the written agreement “to settle this case”

and Cuero’s preexisting guilty plea and conviction, the

prosecution moved to amend the complaint to add a second

strike and two additional felony priors, drastically increasing

Cuero’s sentencing exposure from a maximum of 14 years, 4

months to a minimum of 25 years and a maximum of 64 years

to life. A different Superior Court judge than the one who

accepted the plea agreement and signed the conviction papers

permitted, over defense counsel’s objection, the prosecutor to

“amend” the charging document. Cuero, deprived of the

benefit of his original bargain and having no other choice,

entered into a new plea agreement exposing him to a

maximum sentence of 25 years to life. On April 20, 2006, the

new trial judge sentenced Cuero to 25 years to life.

II.

Under the Antiterrorism and Effective Death Penalty Act

(“AEDPA”), a habeas petition may not be granted unless the

state court’s adjudication of the claim under review “resulted

in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law”

or “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).

“[C]learly established Federal law under § 2254(d)(1) 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)

8 CUERO V. CATE

(internal quotation marks omitted). At the time of the state

court’s decision, Supreme Court precedent clearly established

that it was a violation of Michael Cuero’s due process rights

for the prosecution to seek to amend its complaint after Cuero

entered a guilty plea induced by a plea agreement with the

State. The trial judge’s decision to allow the prosecution to

amend the complaint after Cuero pleaded guilty and was

convicted pursuant to the agreement thus violated clearly

established Supreme Court law, satisfying AEDPA’s

requirements.

First, Santobello v. New York holds that “when 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.”

404 U.S. 257, 262 (1971); see also Bordenkircher v. Hayes,

434 U.S. 357, 362 (1978) (“[A] prosecutor’s plea-bargaining

promise must be kept.”). Santobello stands for the

proposition that “a criminal defendant has a due process right

to enforce the terms of his plea agreement.” Buckley v.

Terhune, 441 F.3d 688, 694 (9th Cir. 2006) (en banc).2

Second, the Court in Mabry v. Johnson instructed us that

a guilty plea entered pursuant to a plea agreement “implicates

the Constitution.” 467 U.S. 504, 507–08 (1984) (“A plea

bargain standing alone is without constitutional significance

. . . . It is the ensuing guilty plea that implicates the

Constitution. Only after respondent pleaded guilty was he

2

This language from Buckley and other citations to circuit precedent in

the panel majority opinion guided our analysis only “for the limited

purpose of assessing what constitutes ‘clearly established’ Supreme Court

law and whether the state court applied that law unreasonably.” Woods v.

Sinclair, 764 F.3d 1109, 1121 (9th Cir. 2014).

CUERO V. CATE 9

convicted, and it is that conviction which gave rise to the

deprivation of respondent’s liberty at issue here.”); see also

Kercheval v. United States, 274 U.S. 220, 223 (1927) (“A

plea of guilty . . . is itself a conviction. Like a verdict of a

jury it is conclusive. . . . [T]he court has nothing to do but

give judgment and sentence.”). My dissenting colleagues

incorrectly claim that Mabry did not determine the point at

which a defendant’s due process right to enforce his plea

agreement attaches. Yet the central issue in Mabry was

whether due process concerns are implicated when a

defendant accepts the prosecution’s offer of a plea deal or

only when the defendant pleads guilty in detrimental reliance

on the plea agreement. See Mabry, 467 U.S. at 507–10. The

core holding of Mabry is thus that a plea of guilty induced by

a plea agreement triggers due process protection.

Together, these Supreme Court cases clearly establish that

a defendant whose guilty plea was induced by a prosecutorial

promise is constitutionally entitled to fulfillment of that

promise and that a subsequent prosecutorial breach of the

plea agreement violates the defendant’s due process rights.

Once Cuero fully performed his promise to plead guilty and

the government moved to dismiss his misdemeanor charge,

Cuero stood “convicted” pursuant to a “Finding and Order”

signed by the judge. According to Mabry, at that point

Cuero’s plea agreement transformed from an “executory

agreement” that did not “implicate[] the Constitution” to one

that bore “constitutional significance” because Cuero’s guilty

plea and conviction were induced by the prosecutor’s

agreement to the reduced charges. 467 U.S. at 507–08.

Cuero’s plea rested on a promise of the prosecutor, requiring

that promise to be “fulfilled.” Santobello, 404 U.S. at 262.

The plea bargain became a constitutionally enforceable

10 CUERO V. CATE

agreement, and Cuero was entitled to have the prosecution

carry out its end of the deal.

There is absolutely no support for the dissent’s

supposition that whether the Due Process Clause is implicated

turns on whether the defendant has been sentenced and final

judgment rendered. In fact, the Supreme Court has held

distinctly contrary to the dissent’s view. In Santobello, the

Supreme Court addressed the Due Process Clause’s

application to circumstances strikingly similar to Cuero’s. At

the point when the prosecution breached Santobello’s plea

agreement, a judgment setting forth the sentence had not been

entered. The prosecution had promised in the pre-judgment

plea agreement that it would not make a sentencing

recommendation, and Santobello pleaded guilty in

accordance with that agreement. 404 U.S. at 258–59. At

sentencing, the government broke its promise by urging the

court to adopt the maximum available sentence, one year. Id.

at 259. The Supreme Court held that Santobello had a due

process right to enforce the terms of his plea agreement,

finding that the prosecutor breached the agreement and that

“the adjudicative element inherent in accepting a plea of

guilty” must contain safeguards to protect the rights of

defendants, including the right to have a prosecutorial

promise fulfilled when such promise was used to induce a

guilty plea. Id. at 262 (emphasis added).

Defendants routinely promise pursuant to plea agreements

both to plead guilty and to cooperate by testifying at a

codefendant’s trial. The defendant enters his plea, the plea is

accepted by the court, but he is not sentenced until after he

fully cooperates, and therefore a final judgment is not

immediately entered. According to the dissent’s analysis,

because the defendant has not been convicted and final

CUERO V. CATE 11

judgment has not been entered, an amendment of the charging

document at that point would be constitutionally permissible.

Yet it would be a clear violation of a defendant’s due process

rights to allow the prosecution to breach the agreement by

seeking to amend the complaint or indictment at that stage,

once the defendant had already fully performed his end of the

bargain by testifying against his codefendant. It therefore

cannot be the case that due process rights do not attach until

the defendant has already been sentenced and “final

judgment” entered. The dissent’s discussion of the

distinction between a guilty plea and the entry of judgment

(which carefully omits the fact of conviction following entry

of a plea) is thus a distinction without a difference to our

analysis.

Similarly, the dissent’s argument that the original plea

agreement “was not in effect at the time judgment was

entered” and therefore lacks constitutional significance begs

the question. The original plea deal was “in effect” when

Cuero first pleaded guilty and was convicted pursuant to his

plea. To the extent the agreement ceased to be “in effect,”

this was solely because in the interim the government was

allowed to breach the agreement, leaving Cuero no choice but

to plead a second time to a different complaint and be

convicted once more. The dissent’s argument reduces to the

proposition that because the government breached the first

plea agreement, Cuero’s guilty plea and resulting conviction

induced by that plea agreement did not implicate due process,

creating a catch-22 for Cuero and like defendants. According

to my dissenting colleagues, the due process right to enforce

a plea agreement would apply only where the prosecutor had

not previously breached it.

12 CUERO V. CATE

III.

The dissent similarly holds an alternative view of state

law untethered to reality. California state law treats guilty

pleas entered without the inducement of a plea agreement

with the State differently from those that are entered pursuant

to a plea deal. Under California law, the rights of both parties

to back out of the plea agreement terminated once Cuero

entered his plea pursuant to the parties’ agreement and was

convicted. Cuero did not simply enter a plea that he could

withdraw. The trial court “made the requisite factual findings

and accepted the plea,” Brown v. Poole, 337 F.3d 1155, 1159

(9th Cir. 2003), and concluded that Cuero was “convicted

thereby.” Once the plea was accepted and Cuero was

convicted, he could no longer withdraw his guilty plea absent

good cause and an exercise of discretion by the court. Cal.

Penal Code § 1018. Similarly, California Penal Code

§ 969.5, while allowing the prosecution to amend a complaint

after the entry of guilty pleas without plea agreements, does

not allow the prosecution to amend its complaint following a

guilty plea that was induced by prosecutorial promises

embedded in a plea agreement. Instead, 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.” 3 B.E. Witkin et al., California

Criminal Law § 382 (4th ed. 2012) (emphasis added); see

also People v. Superior Court (Alvarado), 255 Cal. Rptr. 46,

50–51 (Ct. App. 1989). California law does not permit

amendment to the complaint when the guilty plea is entered

in reliance on a plea agreement precisely because such an

interpretation would run afoul of the due process protections

that attach under those circumstances. The dissent is

therefore wrong as a matter of state as well as constitutional

law.

CUERO V. CATE 13

IV.

The dissent further misstates California law providing the

requisite remedy for the prosecution’s breach. As the dissent

acknowledges, the Supreme Court has clearly established that

“the construction of [a] plea agreement and the concomitant

obligations flowing therefrom are, within broad bounds of

reasonableness, matters of state law.” Ricketts v. Adamson,

483 U.S. 1, 5 n.3 (1987). Moreover, both Supreme Court and

California precedent provide that plea agreements are to be

interpreted in accordance with state contract law. See Puckett

v. United States, 556 U.S. 129, 137 (2009) (“[P]lea bargains

are essentially contracts.”); People v. Segura, 188 P.3d 649,

656 (Cal. 2008) (“A plea agreement is, in essence, a contract

between the defendant and the prosecutor to which the court

consents to be bound.” (quoting People v. Ames, 261 Cal.

Rptr. 911, 913 (Ct. App. 1989))). “A negotiated plea

agreement is a form of contract, and it is interpreted

according to general contract principles.” People v. Shelton,

125 P.3d 290, 294 (Cal. 2006).

By seeking to amend the complaint after Cuero waived all

his rights, pleaded guilty and was convicted, the prosecution

breached the fundamental promise it made to Cuero: The

State agreed to drop a charge and thereby limit Cuero’s

maximum exposure to 14 years, 4 months incarceration. The

foundation of a charge bargain is that the parties reach an

agreement as to what the prosecution will and will not charge

and to what the defendant will plead. See LaFave, supra, at

§ 21.1(a). By definition, a charge bargain means that the

prosecution will not later add charges or strikes, just as the

defendant will not plead to less than the agreed-upon charges

and strikes. The government’s attempt to amend the

14 CUERO V. CATE

complaint unequivocally breached its central promise to

Cuero.3

“Where a plea agreement is breached, the purpose of the

remedy is, to the extent possible, to repair the harm caused by

the breach.” Buckley, 441 F.3d at 699 (internal quotation

marks omitted) (quoting People v. Toscano, 20 Cal. Rptr. 3d

923, 927 (Ct. App. 2004) (citing People v. Kaanehe, 559 P.2d

1028, 1036–37 (Cal. 1977))). California law calls for specific

performance “when it will implement the reasonable

expectations of the parties without binding the trial judge to

a disposition that he or she considers unsuitable under all the

circumstances.” People v. Mancheno, 654 P.2d 211, 215

(Cal. 1982). “When the breach [alleged] is a refusal by the

3

The dissent also argues that the state prosecutor made a mistake in the

original plea agreement, which could entitle the prosecution to rescission.

First, the state has never raised the issue of rescission based on mistake in

the many years of briefing in this case, so the argument is waived.

Second, there is no evidence that the state prosecutor’s original promises

under the first plea agreement arose from a “mistake.” It is equally likely

that the prosecution forewent additional legal research and investigation

in order to secure a quick, favorable resolution of this case. Third, the

government’s putative “mistake” regarding whether Cuero’s prior

conviction constituted a strike under California law would have been a

mistake of law, not a mistake of fact, and California law does not permit

rescission of a contract based on a party’s unilateral mistaken

interpretation or application of the law. See Cal. Civ. Code §§ 1578,

1689(b)(1). Finally, even if the standard permitting rescission for certain

unilateral mistakes of fact applied here, rescission is not available to a

party whose mistake of fact was the result of its own negligence, see Cal.

Civ. Code § 1577, as was the government’s late “discovery” of Cuero’s

strike here: The government had access to all the information necessary

to conclude that Cuero’s second prior conviction constituted a strike, and

its failure to do so before entering the plea agreement was exclusively the

result of its own negligence at best or a calculated, though incorrect,

decision at worst.

CUERO V. CATE 15

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.” People v. Timothy N. (In re Timothy N.), 157 Cal.

Rptr. 3d 78, 88 (Ct. App. 2013) (alteration in original)

(internal quotation marks omitted) (quoting Kaanehe, 559

P.2d at 1036).

Here, the sole remedy available to implement Cuero’s

reasonable expectations was specific performance.

“Permitting” Cuero to withdraw his guilty plea and plead

guilty to the constitutionally defective amended complaint,

the alternative remedy proposed, did not repair the harm

caused by the breach; instead, it allowed the prosecution to

achieve the precise outcome it sought in breaching the plea

agreement. Protection of Cuero’s due process rights therefore

“leaves specific performance as the only viable remedy.”

Brown, 337 F.3d at 1161.

V.

Finally, the panel majority opinion has none of the

broader implications my dissenting colleagues would ascribe

to it. The opinion does not alter the existing dynamic

between the prosecutor and the defendant. Prosecutors are

already constitutionally required to uphold their end of plea

agreements following the entry of a guilty plea and

conviction, see Santobello, 404 U.S. at 262—a proposition

that no one can fairly find surprising. Neither party to a

binding plea agreement is permitted to renege on that

agreement because he may have entered it on the wrong

assumptions. If the prosecution is troubled by its inability to

16 CUERO V. CATE

breach a binding plea agreement if further information about

a defendant’s criminal history comes to light, contractual

provisions can and do minimize that risk. Here, for example,

the original plea agreement could have provided that if the

state later learned that one of the charged priors qualified as

a strike, the court could treat it as such for sentencing

purposes. And contrary to my dissenting colleagues’

contention, the panel majority opinion does not apply where

the defendant misrepresents his identity or prior convictions

and thereby fraudulently induces the government to enter a

plea agreement that does not reflect his full criminal history.

In this case, the government had access to accurate and

adequate information about Cuero’s prior convictions at the

time of the original plea agreement and merely neglected to

reflect his full criminal history in the original amended

complaint.

It is only by abstracting to the highest level—noting that

“plea agreements play an instrumental part in our criminal

justice system”—that my dissenting colleagues can claim that

this case impedes the administration of criminal justice in

California. No one disputes that plea agreements are an

“essential component of the administration of justice.”

Santobello, 404 U.S. at 260. Yet the majority opinion in no

way interferes with the ability of the state to conduct plea

negotiations and enter plea agreements. Indeed, it is the

dissent’s interpretation of the Due Process Clause and

California Penal Code § 969.5—as enabling the prosecution

to back out of charge bargains already accepted by the court

and fully performed by the defendant—that would undermine

the stability of the plea bargaining system by rendering such

bargains illusory and untrustworthy. If a prosecutor could

unilaterally renege on a plea bargain that had been accepted

by the court and fully performed by a defendant, defendants

CUERO V. CATE 17

would likely lose faith in the plea bargaining system and

would rationally require more substantial promises from the

prosecution to secure their participation.

CALLAHAN, Circuit Judge, with whom O’SCANNLAIN,

TALLMAN, BYBEE, BEA, M. SMITH, and IKUTA, Circuit

Judges, join, dissenting from the denial of rehearing en banc:

For the second time in roughly as many weeks, we invite

summary reversal by the Supreme Court in a state court

habeas case.1 The three-judge panel decision here is not

based on clearly established federal law, as the Supreme

Court has never held that the Due Process Clause precludes

post-plea, pre-judgment amendments to a complaint. Nor has

the Supreme Court ever ordered the reinstatement of an

alleged plea agreement that was not in effect at the time

judgment was entered. Such an exercise of raw federal

judiciary power, though, is exactly what the Antiterrorism

and Effective Death Penalty Act (“AEDPA”), 28 U.S.C.

§ 2254, prohibits. I respectfully dissent from our refusal to

rehear this case en banc.

I. BACKGROUND

On October 14, 2005, Michael Cuero (“Cuero”) crashed

his vehicle into Jeffrey Feldman, who was standing on the

side of the road next to his parked pickup truck. At the time,

Cuero did not have a valid driver’s license, was under the

1

The other case we refused to rehear en banc was Hardy v. Chappell,

832 F.3d 1128 (9th Cir. 2016), reh’g en banc denied, — F.3d — (9th Cir.

2017).

18 CUERO V. CATE

influence of methamphetamine, and was on active parole for

prior drug violations. Although the record is silent as to the

injuries Cuero sustained from the crash, he maintained the

wherewithal and physical ability to dispose of the 9mm

semiautomatic pistol that he, as a felon, was unlawfully

possessing. Feldman, on the other hand, was not so fortunate.

He had to be airlifted to the nearest trauma center, where he

immediately underwent emergency surgery and was put on

life support. Among other things, Feldman suffered a severe

brain injury, fractures to all the bones in his face, and a

ruptured spleen. Feldman’s prognosis was grim and his

treating physicians believed he would never be able to work

again.

A few days after the crash, the People filed its initial

criminal complaint against Cuero. On October 28, 2005, the

People filed an amended criminal complaint, alleging that

Cuero: (1) inflicted serious bodily injury to Feldman while

driving under the influence of alcohol or drugs and that he did

so within ten years of a driving under the influence

conviction, a felony; (2) possessed a firearm as a felon, a

felony; and (3) was under the influence of a controlled

substance, a misdemeanor. The People also alleged that

Cuero had served four prior prison terms2 and that one of his

prior convictions—for residential burglary—constituted a

strike.

On December 8, 2005, Cuero pleaded guilty to inflicting

serious bodily injury while driving under the influence and to

unlawful possession of a firearm. Additionally, Cuero

admitted that he had served four prior prison terms and that

2

For each prior prison term, an additional one-year, consecutive prison

term is added. See Cal. Penal Code § 667.5(b).

CUERO V. CATE 19

his residential burglary conviction was a strike. Following

Cuero’s plea, the Superior Court granted the People’s motion

to dismiss the remaining misdemeanor count. In light of his

pleas and admissions, Cuero’s maximum punitive exposure

was 14 years, 4 months. It is not clear whether Cuero’s plea

was based on an agreement with the People; there is evidence

that it was not.3 There is no evidence, though, that the People

agreed to recommend a particular sentence or to waive its

ability to later amend the complaint to add a charge or strike.

In preparing the sentencing memorandum and upon

further investigation, the prosecuting attorney discovered that

Cuero had two additional serious felony convictions and an

assault-with-a-deadly-weapon conviction that constituted yet

another strike.4 On January 11, 2006, pursuant to California

Penal Code section 969.5,5 the People filed a motion to

3

For instance, in response to the plea form’s question of whether he had

“been induced to enter [his] plea by any promise or representation of any

kind,” Cuero wrote: “STC–NO DEALS W/ THE PEOPLE.” See Cuero

v. Cate, 827 F.3d 879, 915 (9th Cir. 2016) (O’Scannlain, J., dissenting).

Based on the judge’s statements at the plea hearing, “STC” appears to

stand for “sentence for the court.” Id. at 901 n.7 (O’Scannlain, J.,

dissenting).

4

Under California law, whether an assault-with-a-deadly-weapon

conviction constitutes a strike is based on the conviction’s underlying

facts. See, e.g., People v. Winters, 93 Cal. App. 4th 273, 280 (2001)

(noting that not all assault-with-a-deadly-weapon convictions constitute

a strike).

5

California Penal Code section 969.5(a) provides:

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

20 CUERO V. CATE

amend the criminal complaint to add the two serious felony

convictions and allege that Cuero’s assault-with-a-deadly

weapon conviction was an additional strike.6 Cuero

challenged the amendment, arguing that the Superior Court,

exercising the discretion afforded to it by California Penal

Code section 969.5, should deny the request because it was

untimely and would prejudice him. However, Cuero did not

contend that the requested amendment violated the Due

Process Clause or California contract law.

Following a hearing on February 2, the Superior Court

granted the People’s request. The Superior Court based its

decision on section 969.5’s language and its belief that

existing case law demonstrated that an increase in exposure

due to an amendment does not impact a defendant’s

substantial rights. After announcing its decision, the Superior

Court asked Cuero if he wished to withdraw his plea. Cuero

responded by requesting time to make his determination,

which the Superior Court afforded him. Thereafter, the

People filed a second amended complaint, which raised

Cuero’s possible exposure to a sentence of 64 years to life.

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. The defendant shall thereupon be

arraigned before the court to which the complaint has

been certified and shall be asked whether he or she has

suffered the prior conviction. If the defendant enters a

denial, his or her answer shall be entered in the minutes

of the court. The refusal of the defendant to answer is

equivalent to a denial that he or she has suffered the

prior conviction.

6

Each prior “serious felony” conviction adds a five-year enhancement

to a defendant’s sentence. Cal. Penal Code § 667(a)(1).

CUERO V. CATE 21

Sometime during the next month and a half, Cuero

reached an agreement with the People. In exchange for

Cuero pleading guilty to inflicting great bodily injury to

Feldman while driving under the influence of a drug and

admitting the alleged two prior strikes, the People agreed to

withdraw the second amended complaint and charge Cuero

with only inflicting great bodily injury to Feldman while

driving under the influence of a drug and having two prior

strikes, which had the effect of dramatically reducing Cuero’s

exposure.

At the change-of-plea hearing held on March 27, 2006,

the People filed a third amended complaint (“TAC”)

reflecting these changes. Cuero withdrew his previous guilty

plea and pleaded guilty to the TAC’s single charge. Cuero

also admitted to the two prior strikes contained in the TAC

and stipulated to a 25-years-to-life sentence.

The sentencing hearing was held on April 20, 2006. At

no point leading up to it did Cuero attempt to withdraw from

his plea or ask the Superior Court to exercise its discretion

and sentence him to less than 25 years to life, which he could

have done.7 The Superior Court sentenced Cuero to what it

had said it would—25 years to life.

7

As noted in People v. Superior Court (Romero), 13 Cal. 4th 497, 504,

529–30 (1996), pursuant to California Penal Code section 1385(a), a trial

court may dismiss a strike if it is in furtherance of justice.

22 CUERO V. CATE

On direct appeal, Cuero’s counsel filed a Wende brief8

and asked the California Court of Appeal to review the record

for error. Specifically, counsel directed the appellate court’s

attention to the “possible but not arguable issue[]” of

“whether the [People’s] amendment violated the terms of the

earlier plea agreement in violation of due process.” The

appellate court afforded Cuero the opportunity to file a

separate brief, but Cuero chose not to do so. After

“review[ing] the entire record,” on March 21, 2007, the Court

of Appeal found that there was “no reasonably arguable

appellate issue” and affirmed the Superior Court.

Thereafter, Cuero petitioned for habeas relief in the

Superior Court, California Court of Appeal, and California

Supreme Court, all of which denied Cuero’s request for relief.

Cuero then filed a federal habeas petition in the District

Court, which was also denied and serves as the basis for this

appeal.

II. DISCUSSION

A federal habeas petition challenging state custody shall

be denied “unless the [state court’s] adjudication of the

claim[] resulted in a decision that was contrary to, or involved

an unreasonable application of, clearly established Federal

law, as determined by the Supreme Court of the United

States.” 28 U.S.C. § 2254(d)(1) (emphasis added). “A

decision is ‘contrary to’ Supreme Court precedent where ‘the

state court arrives at a conclusion opposite to that reached by

the Supreme Court on a question of law or if the state court

8

A Wende brief, named after People v. Wende, 25 Cal. 3d 436 (1979),

is similar to a brief filed in federal court pursuant to Anders v. California,

386 U.S. 738 (1967).

CUERO V. CATE 23

decides a case differently than the Supreme Court has on a set

of materially indistinguishable facts.’” Jones v. Harrington,

829 F.3d 1128, 1135 (9th Cir. 2016) (alterations in original

omitted) (quoting Williams v. Taylor, 529 U.S. 362, 413

(2000)). “A state court unreasonably applies clearly

established federal law if it ‘identifies the correct governing

legal rule but unreasonably applies it to the facts of the

particular state prisoner’s case.’” Id. (alterations in original

omitted) (quoting White v. Woodall, 134 S. Ct. 1697, 1705

(2014)). State court decisions are to be measured “against

[the Supreme Court’s] precedents as of ‘the time the state

court renders its decision.’” Greene v. Fisher, 132 S. Ct. 38,

44 (2011) (emphasis in original) (quoting Lockyer v.

Andrade, 538 U.S. 63, 71–72 (2003)).

The majority finds that the Superior Court’s approval of

the People’s request to amend was both contrary to and an

unreasonable application of clearly established law.9 Cuero

v. Cate, 827 F.3d 879, 883 (9th Cir. 2016). In reaching this

erroneous conclusion, the majority goes beyond the scope of

what Supreme Court precedent instructs. Rather than

interpret “clearly established Federal law, as determined by

the Supreme Court of the United States,” the majority gives

the Due Process Clause an overbroad and unprecedented

interpretation that intrudes upon the just and orderly

administration of justice in California and other states within

the Ninth Circuit.

9

In light of its finding that habeas relief was warranted based on the

People’s court-approved amendment, the majority did not address Cuero’s

ineffective assistance of counsel claim. See Cuero, 827 F.3d at 883 n.4.

24 CUERO V. CATE

A. The Superior Court’s approval of the People’s

requested amendment was neither contrary to nor

an unreasonable application of clearly established

Supreme Court precedent.

First, the Supreme Court has never held that the Due

Process Clause prevents a state prosecutor from amending a

criminal complaint post-plea, pre-judgment. Second,

California Penal Code sections 969.5, 1009, and 1192.5

specifically allow for post-plea amendments of complaints,

and no California court has limited any of the section’s

application to instances where a defendant pleaded without an

agreement. Third, the Supreme Court has never held that

specific performance is the only remedy for alleged violations

of the Due Process Clause during the plea bargaining process

or that federal appellate courts, as opposed to state courts,

should fashion the remedy for any such violation. In fact, it

has held the opposite.

1. Supreme Court precedent does not clearly

establish that the People’s post-plea, pre-

judgment amendment implicates the Due

Process Clause.

The majority claims that “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.” Cuero, 827 F.3d at 885 (internal quotation

marks omitted). But—as the majority’s citation of only three

Ninth Circuit cases reveals—the Supreme Court has never

applied the Due Process Clause to a plea agreement that was

CUERO V. CATE 25

not in effect at the time judgment was entered.10 Thus, even

assuming that Cuero’s initial guilty plea was pursuant to a

plea agreement, there is no basis to conclude that the Superior

Court acted contrary to or unreasonably applied clearly

established Supreme Court precedent by exercising its

statutorily-based authority and approving the People’s request

to amend the complaint. See, e.g., Lopez v. Smith, 135 S. Ct.

1, 4 (2014) (per curiam) (stating that precedent must address

“the specific question presented by th[e] case”).

In its conclusion, the majority states that, “[b]y 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 [v. New York, 404 U.S. 257 (1971)].” Cuero, 827

F.3d at 891. However, Santobello is clearly distinguishable.

There, the defendant agreed to plead guilty in exchange for

the government’s explicit promise not to make a sentence

recommendation. 404 U.S. at 258. Following the Santobello

defendant’s guilty plea, though, the government violated the

parties’ agreement by asking for the maximum possible

sentence. Id. at 259. Significantly, unlike Cuero, the

defendant in Santobello was never afforded the opportunity

to back out of the parties’ agreement and withdraw his plea.

Id. at 263. Therefore, at the time judgment was entered, the

defendant in Santobello remained bound by the agreement he

had reached with the government, despite the government’s

10

While the language in some of our opinions may support the

majority’s conclusion, it is the Supreme Court’s precedent, not ours, that

matters here. See, e.g., Glebe v. Frost, 135 S. Ct. 429, 431 (2014) (per

curiam) (noting that the Supreme Court has “repeatedly emphasized [that]

circuit precedent does not constitute clearly established Federal law, as

determined by the Supreme Court” (internal quotation marks omitted)).

26 CUERO V. CATE

breach. Santobello thus does not address the specific

question in this case—does the Due Process Clause apply to

an alleged plea agreement that is withdrawn before judgment

is entered—and therefore cannot serve as a basis for habeas

relief. See Lopez, 135 S. Ct. at 4.

Mabry v. Johnson, 467 U.S. 504 (1984), overruled in part

by Puckett v. United States, 556 U.S. 129 (2009), also cannot

serve as a basis for habeas relief. There, the Supreme Court

stated:

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.

467 U.S. at 507–08 (emphasis added) (footnote omitted).

Mabry thus identifies two points at which due process rights

may possibly attach in this context: (1) the entry of a plea, or

(2) the entry of judgment. Notably, though, Mabry did not

actually decide the issue because the government had

withdrawn the plea agreement the defendant sought to

enforce before the defendant entered a plea pursuant to it. Id.

at 506.

In the thirty-plus years since Mabry, the Supreme Court

has not addressed the Due Process Clause’s application to a

CUERO V. CATE 27

pre-judgment plea agreement. As a result, the “precise

contours” of a defendant’s due process rights in the plea

agreement context “remain unclear.” White, 134 S. Ct. at

1705 (quoting Lockyer, 538 U.S. at 75–76). Therefore, at an

absolute minimum, reasonable minds could disagree about

whether the Due Process Clause covers pre-judgment plea

agreements, particularly those that have been withdrawn or

are not in effect at the time of judgment. See, e.g.,

Harrington v. Richter, 562 U.S. 86, 101 (2011) (“A state

court’s determination that a claim lacks merit precludes

habeas relief so long as ‘fairminded jurists could disagree’ on

the correctness of the state court’s decision.” (quoting

Yarborough v. Alvarado, 541 U.S. 652, 664 (2004))).

Contrary to the majority’s indication, there is a significant

difference between the entry of a guilty plea and the entry of

judgment. Far from a perfunctory step, the entry of judgment

constitutes a significant milestone in a prosecution. Among

other possible things, the entry of judgment dramatically

reduces a defendant’s ability to withdraw his guilty plea and

exercise his constitutional right to trial. See Cal. Penal Code

§ 1018.11 In short, the entry of judgment provides a finality

that does not exist when a defendant simply offers to plead.

Until judgment is entered, the defendant may withdraw his

plea or the trial judge may withdraw approval. This

distinction further confirms the reasonableness of the belief

that the Due Process Clause attaches only after judgment is

entered.

11

The imposition of a sentence or entry of judgment has a similar effect

in other states within the Ninth Circuit. See, e.g., Alaska R. Crim. P.

11(e); Haw. R. Penal P. 32(d); Idaho Crim. R. 33(c); Nev. Rev. Stat. Ann.

§ 176.165; Or. Rev. Stat. Ann. § 135.365.

28 CUERO V. CATE

Under California law, “[i]n a criminal case, judgment is

rendered when the trial court orally pronounces sentence.”

People v. Karaman, 4 Cal. 4th 335, 344 n.9 (1992); accord

People v. Mendoza, 171 Cal. App. 4th 1142, 1150 (2009).

Therefore, while a guilty plea is certainly a stop along the

path to a judgment, it is not the final destination, as it does

not include a sentence pronouncement. See, e.g., Cal. Penal

Code § 1191 (stating that, “in a felony case, after a plea, . . .

the court shall appoint a time for pronouncing judgment”).

Here, it is undisputed that, at the time the People sought and

received permission to amend its complaint, no sentence had

been announced, and, thus, no judgment had been entered.

As a result, even if there was an initial plea agreement and the

People’s amendment violated it, a reasonable judge could

find that the state courts here did not act contrary to, or

unreasonably apply, clearly established federal law by

allowing the amendment because no Supreme Court case has

applied the Due Process Clause to a situation like the one

presented here.

The fact that the Superior Court or California Court of

Appeal might have extended the Due Process Clause to cover

Cuero’s alleged initial plea agreement does not mean that

their failure to do so amounts to an unreasonable application

of federal law. See, e.g., White, 134 S. Ct. at 1706 (stating

that AEDPA “does not require state courts to extend [the

Supreme Court’s] precedent or license federal courts to treat

the failure to do so as error”). Simply put, Supreme Court

precedent does not “squarely establish[]” that the Due Process

Clause applies to pre-judgment plea agreements. Id.

Therefore, it is not “so obvious that a clearly established rule

applies to [this case] that there could be no fairminded

disagreement on the question,” as is needed for relief under

AEDPA. Id. at 1706–07 (internal quotation marks omitted).

CUERO V. CATE 29

2. The People’s post-plea, pre-judgment

amendment to the criminal complaint did not

violate the Due Process Clause.

Assuming, arguendo, that there was an initial plea

agreement and that the Due Process Clause applied to it, there

is no due process violation. “[T]he construction of [a] plea

agreement and the concomitant obligations flowing therefrom

are, within broad bounds of reasonableness, matters of state

law.” Ricketts v. Adamson, 483 U.S. 1, 5 n.3 (1987). To

reiterate, California Penal Code section 969.5(a) states, in

relevant part:

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.12

12

In the last sentence of footnote 12, the majority states that, “[i]n 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, 827 F.3d at 889 n.12

(alterations in original). Presumably, this statement was intended to imply

that section 969.5 is not applicable in this case. There is a good reason the

majority buried this statement in a footnote—it has no support. Nothing

in existing case law suggests that section 969.5 does not apply to a strike,

which is, after all, a felony. Further, the California Court of Appeal has

affirmed amendments to add strikes under California Penal Code section

969a, which employs the same “does not charge all prior felonies of which

30 CUERO V. CATE

Additionally, California Penal Code section 1009 declares

that the trial court “may order or permit an amendment of an

indictment, accusation or information, or the filing of an

amended complaint, for any defect or insufficiency, at any

stage of the proceedings.” Also, California Penal Code

section 1192.5 provides that, following a defendant’s guilty

plea, a trial court retains the ability to “withdraw its approval

[of the plea] in light of further consideration of the matter.”

Prior to pleading, a defendant is made aware of this ability.

See Cal. Penal Code § 1192.5.

No California state court has held that sections 969.5,

1009, and 1192.5 are inapplicable in cases where a defendant

pleads pursuant to a plea agreement reached with the People.

See People v. Lettice, 221 Cal. App. 4th 139, 150 n.12 (2013)

(“Neither the [People v. Valladoli, 13 Cal. 4th 590 (1996),]

court, nor any other court of which we are aware, has

considered whether the People may file an amended

information after having entered into a plea agreement to

resolve the case.”). Therefore, based on the sections’ plain

language, a complaint may be amended post plea if the

People seek and receive approval from the trial court to do so.

Cf. People v. Superior Court (Alvarado), 207 Cal. App. 3d

464, 478 (1989) (noting that trial courts have the discretion to

amend a complaint to “allege a prior felony conviction after

a guilty plea has been entered by the accused [under section

969.5]”).

Here, California’s amendment process was followed: the

People filed a motion to amend, the Superior Court held a

the defendant has been convicted” language. See, e.g., People v.

Sandoval, 140 Cal. App. 4th 111, 132–34 (2006). Thus, section 969.5

clearly applies here.

CUERO V. CATE 31

hearing on the motion, and, after determining that the

requested amendment would not unfairly prejudice Cuero’s

substantial rights, the Superior Court granted the People’s

request and an amended complaint was filed. Furthermore,

the Superior Court allowed Cuero to withdraw his initial plea,

which was purportedly based on an earlier plea agreement.

As a result, the People’s amendment is consistent with state

law and did not violate the Due Process Clause.

Recognizing that California criminal procedure law

cannot get them to where they want to go, the majority shifts

its focus to California contract law. See Cuero, 827 F.3d at

885–91. However, the majority’s reliance on this body of law

is misplaced for two reasons: first, the Supreme Court has

never construed the phrase “matters of state law” to mean just

“matters of state contract law”; and second, even if it had, in

this case, the Superior Court’s approval of the People’s

request to amend is not clearly inconsistent with that body of

law.13

i. The Supreme Court has never said that

“matters of state law” means “matters of

state contract law,” thus, the Superior

Court was not bound to apply woodenly

California contract law.

The majority takes the Superior Court to task for not

explicitly discussing the interplay between the California

Penal Code and California contract law. Id. at 889–90. But

why would it? Cuero did not raise any arguments under

13

In addition, federal habeas corpus jurisdiction does not extend to

alleged violations of state law. See, e.g., Guzman v. Morris, 644 F.2d

1295, 1297 (9th Cir. 1981); 28 U.S.C. § 2254(a).

32 CUERO V. CATE

California contract law and neither the Supreme Court nor the

California appellate courts have required its consideration. It

is true that a number of cases have stated that California

contract law generally applies to plea agreements. See id. at

888 (collecting cases). “Generally speaking,” though, has no

place in the AEDPA lexicon. See, e.g., Lopez, 135 S. Ct. at

4 (“We have before cautioned the lower courts—and the

Ninth Circuit in particular—against ‘framing our precedents

at such a high level of generality.’” (quoting Neveda v.

Jackson, 133 S. Ct. 1990, 1994 (2013) (per curiam))). The

precedent relied upon under AEDPA must address “the

specific question presented by this case,” id., which here is:

does state contract law eliminate a prosecutor’s statutory

ability to amend a criminal complaint after a defendant has

allegedly pleaded pursuant to a plea agreement, but before

judgment has been entered. No Supreme Court or California

appellate court precedent answers this question.

Undeterred, the majority turns to our own precedent,

specifically, Davis v. Woodford, 446 F.3d 957 (9th Cir.

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

(en banc). See Cuero, 827 F.3d at 888–89. But Davis and

Buckley were decided after the Superior Court approved the

People’s amendment and are not Supreme Court opinions.

As the Supreme Court has made clear, “[c]ircuit precedent

cannot ‘refine or sharpen a general principle of Supreme

Court jurisprudence into a specific legal rule that [the

Supreme] Court has not announced.’” Lopez, 135 S. Ct. at 4

(quoting Marshall v. Rodgers, 133 S. Ct. 1446, 1450 (2013)

(per curiam)). Thus, the Superior Court was not bound to

apply woodenly state contract law, but rather, as Ricketts

instructs, could consider any relevant state law. Ricketts, 483

U.S. at 5 n.3.

CUERO V. CATE 33

The Superior Court’s approval of the People’s request to

amend is consistent with state law. First, the language in

sections 969.5, 1009, and 1192.5 is broad and neither the

California Supreme Court nor the California Court of Appeal

has narrowed it. Second, existing California law evinces a

strong desire that repeat felony offenders receive “longer

prison sentences and greater punishment.” Cal. Penal Code

§ 667(b). Third, California law strongly disfavors

prosecutors dismissing or not charging all of a defendant’s

strikes, allowing for such action to occur only when it is “in

the furtherance of justice” or when there is insufficient

evidence to prove the strike. See Cal. Penal Code

§ 667(f)(1).14

In light of sections 969.5, 1009, and 1192.5, California

contract law is not controlling. Again, no California case has

ever held that state contract law limits the application of

sections 969.5, 1009, and 1192.5. Furthermore, to the extent

sections 969.5, 1009, and 1192.5 are inconsistent with state

contract law in allowing the People to amend the complaint,

those statutory provisions should govern because they speak

more directly to the situation faced by the Superior Court.

See, e.g., RadLAX Gateway Hotel, LLC v. Amalgamated

Bank, 132 S. Ct. 2065, 2071 (2012) (“It is a commonplace of

statutory construction that the specific governs the general.”

14

Section 667(f) specifically refers to “serious and/or violent felony

convictions.” However, as subsequent case law makes clear, a “serious

and/or violent felony conviction” under section 667(f) constitutes a strike.

See, e.g., People v. Acosta, 29 Cal. 4th 105, 111 (2002) (“Each of these

crimes is either a ‘serious felony’ . . . or a ‘violent felony’ . . . and

therefore is a strike under the Three Strikes law.”). Because the terms are

interchangeable, and for the sake of clarity, this dissental uses the word

“strike,” as opposed to the phrase “serious and/or violent felony

conviction,” when discussing section 667(f).

34 CUERO V. CATE

(alteration in original omitted) (quoting Morales v. Trans

World Airlines, Inc., 504 U.S. 374, 384 (1992))); Morton v.

Mancari, 417 U.S. 535, 550–51 (1974) (“Where there is no

clear intention otherwise, a specific statute will not be

controlled or nullified by a general one, regardless of the

priority of enactment.”).

ii. Even if state contract law had a role to play

in the analysis, a reasonable judge could

conclude that the People’s amendment was

permissible.

Although not stated, it is clear that the majority

essentially viewed the People’s amendment as a rescission of

the alleged initial plea agreement. Under California law, a

party to a contract may rescind a contract if the party’s

consent was given by mistake.15 See Cal. Civ. Code

§ 1689(b)(1). To claim rescission, the mistaken party must

show that:

(1) [he] made a mistake regarding a basic

assumption upon which [he] made the

contract; (2) the mistake has a material effect

upon the agreed exchange of performances

that is adverse to [him]; (3) [he] does not bear

the risk of the mistake; and (4) the effect of

15

The People’s briefing did not address how its amendment is consistent

with state contract law. Nonetheless, we have an independent duty to ask

“what arguments or theories . . . could have supported[] the state court’s

decision; and then [] ask whether it is possible fairminded jurists could

disagree that those arguments or theories are inconsistent with the holding

in a prior decision of th[e] [Supreme] Court.” Harrington, 562 U.S. at

102.

CUERO V. CATE 35

the mistake is such that enforcement of the

contract would be unconscionable.

Donovan v. RRL Corp., 26 Cal. 4th 261, 282 (2001). Here,

there is no doubt that the People would not have entered into

the alleged initial plea agreement with Cuero had it known

that a second prior conviction constituted a strike. Further, if

the People’s mistake remained uncorrected, Cuero would

have received a windfall—14 years rather than facing a

maximum of 64 years to life. Therefore, factors one and two

are clearly satisfied.

A reasonable judge could also conclude factors three and

four were satisfied. As recently noted by the California Court

of Appeal in Amin v. Superior Court, 237 Cal. App. 4th 1392,

1405 (2015), “there is a dearth of cases in California”

regarding whether a plea agreement is rescindable due to a

prosecutor’s unilateral mistake. While the majority in Amin

concluded that the People failed to establish that factors three

and four were satisfied, see 237 Cal. App. 4th at 1400–07, the

dissent disagreed, id. at 1411–15. For purposes of Cuero’s

appeal, Amin is significant for two reasons. First, it shows

that, even as of 2015, California courts had not conclusively

decided how mistake-of-fact rescission applied in the plea

agreement context. Second, the disagreement between the

majority and dissent demonstrates that reasonable judges

could disagree about the issue, even years after the conclusion

of Cuero’s state court proceedings. Thus, the state courts

here could have reasonably found that the alleged initial plea

agreement could be rescinded.

Despite the majority’s intimation to the contrary, the

alleged rescission in this case did not occur past the point of

no return. The People could still be disgorged of the benefit

36 CUERO V. CATE

received—Cuero’s waiver of his right to trial—and the

proverbial “coin” Cuero had paid could be refunded to him in

full. Stated differently, the initial plea could be unwound and

the parties returned to the exact same position they occupied

prior to the plea being entered, as the prosecutor had argued

at the hearing on the motion to amend. Thus, this case is

unlike those where a defendant, pursuant to a plea agreement,

testifies against another at trial or cooperates with law

enforcement in some meaningful way. As a result, a

reasonable judge could conclude that the alleged rescission

here was permissible. See, e.g., NMSBPCSLDHB v. County

of Fresno, 152 Cal. App. 4th 954, 959–60 (2007) (stating that

rescission “requir[es] each [party] to return whatever

consideration has been received” (quoting Imperial Cas. &

Indem. Co. v. Sogomonian, 198 Cal. App. 3d 169, 184

(1988))).

3. Even if Cuero’s due process rights were

violated, Supreme Court precedent does not

require specific performance.

The majority concludes that the “Superior Court also

unreasonably applied clearly established federal law by

failing to order specific performance of Cuero’s [initial] plea

agreement.” Cuero, 827 F.3d at 890. Again, this conclusion

finds no support in existing Supreme Court precedent. In

fact, it is clearly inconsistent with the Supreme Court’s

declaration that the decision of whether to grant a defendant

specific performance or to allow him to withdraw from his

plea is a decision best left to the “discretion of the state court,

which is in a better position to decide [what relief is

warranted].” Santobello, 404 U.S. at 263.

CUERO V. CATE 37

In addition to being wrong on the law, the majority

ignores the fact that allowing Cuero to withdraw his plea

placed him in the exact same position he was in prior to

entering into the alleged initial plea agreement, which

distinguishes this case from those cited by the majority. See

Cuero, 827 F.3d at 890–91.16 California contract law merely

requires that the non-breaching party be made whole. Here,

pursuant to the alleged initial plea agreement, Cuero gave up

his right to trial, but he received that right back when the

Superior Court approved the People’s request to amend.

It is true that Cuero was deprived of receiving an

unlawfully generous sentence, but this is of no moment.

California law did not clearly establish that, under these

circumstances, a defendant is entitled to re-acquire something

he should have never gotten in the first place; instead, it

indicated just the opposite. See Alvarado, 207 Cal. App. 3d

at 477 (“Although probation ineligibility is prejudicial in the

sense that Alvarado would rather it not be alleged, the

allegation here does not cause prejudice to Alvarado’s

substantial rights. In fact, the amendment merely places

Alvarado in the position he should have been in at the time of

his arraignment in municipal court had he not used an alias

and entered an immediate guilty plea under section 859a.”).

A reasonable judge might well conclude that the appropriate

remedy in this case was to allow Cuero to withdraw from his

16

The three cases cited by the majority in which specific performance

was ordered involved defendants who, in reliance on their plea

agreements, took actions that could not be undone. See Buckley, 441 F.3d

688 (testifying against codefendants); Brown v. Poole, 337 F.3d 1155 (9th

Cir. 2003) (serving as a model inmate during her first few years in

confinement); In re Timothy N., 216 Cal. App. 4th 725 (2013)

(successfully completing probation).

38 CUERO V. CATE

initial plea rather than order the People to perform

specifically the alleged initial plea agreement.

In sum, following the People’s motion to amend the

complaint, the Superior Court held a hearing, considered

Cuero’s opposition to the motion, and, exercising its

statutorily given authority, determined that the People’s

motion should be granted. Further, after making this

determination, the Superior Court afforded Cuero the

opportunity to withdraw from his plea, of which he took

advantage. Nothing in this sequence of events is inconsistent

with state law or established Supreme Court precedent. As a

result, there is no due process violation, the Superior Court

did not err, and Cuero is not entitled to habeas relief.

B. The majority’s opinion intrudes upon the just and

orderly administration of justice in California and

possibly other states within the Ninth Circuit.

“It goes without saying that preventing and dealing with

crime is much more the business of the States than it is of the

Federal Government, and that [federal courts] should not

lightly construe the Constitution so as to intrude upon the

administration of justice by the individual States.” Medina v.

California, 505 U.S. 437, 445 (1992) (citation omitted)

(quoting Patterson v. New York, 432 U.S. 197, 201 (1977)).

Accordingly, federal courts may use the Due Process Clause

to override a state’s prescribed criminal procedure only when

the procedure “offends some principle of justice so rooted in

the traditions and conscience of our people as to be ranked as

fundamental.” Id. (quoting Patterson, 432 U.S. at 202).

Today, plea agreements play an instrumental part in our

criminal justice system. See Santobello, 404 U.S. at 261; see

CUERO V. CATE 39

also Missouri v. Frye, 132 S. Ct. 1399, 1407 (2012) (“Ninety-

seven percent of federal convictions and ninety-four percent

of state convictions are the result of guilty pleas.”). The

majority appears blind to the practical implications of its

ruling. Due to speedy trial concerns, as well as others, plea

negotiations often begin immediately and a prosecutor may

have less-than-complete or unclear information. In hopes of

covering his sordid record, a defendant may use an alias or be

less than forthcoming about his criminal history. Further,

reports from the FBI, state and local law enforcement

authorities, and presentence investigators may not be

available. Cf. Thompson v. Superior Court, 91 Cal. App. 4th

144, 156 (2001) (“At the time of the preliminary hearing, the

defendant’s prior convictions may not be fully known to the

People, especially if the defendant has used one or more

aliases, or has suffered convictions in other states.”). As a

result, mistakes are bound to occur. Though we undoubtedly

want state prosecutors to follow through with agreements

they enter into, we should not impede their need to revive

those agreements upon the discovery of additional

information unless and until the Supreme Court clearly

establishes that we may do so in the specific circumstances

here. See Medina, 505 U.S. at 445; see also Mabry, 467 U.S.

at 511 (“The Due Process Clause is not a code of ethics for

prosecutors[.]”).

The majority’s ruling substantially interferes with

California’s criminal justice system. California law requires

prosecutors to charge a defendant’s prior serious and violent

felonies, i.e., strikes. Without the safety valve created by

California Penal Code sections 969.5, 1009, and 1192.5,

prosecutors will be forced to choose between (a) pressing

ahead with imperfect information and risk potentially

violating California law and (b) refusing to negotiate until

40 CUERO V. CATE

complete information is received, potentially freeing

dangerous individuals and taking to trial cases they otherwise

would not. While Supreme Court precedent sometimes

creates Hobson-like choices for law enforcement personnel,

it has not done so in this particular context and one should not

be foisted onto prosecutors within the Ninth Circuit.

III. CONCLUSION

If past behavior is any indication of future behavior,

Michael Cuero is well on his way to serving a life sentence on

an installment plan. Unfortunately, each new installment

likely means that Cuero has victimized yet another person

whose life, like Jeffrey Feldman’s, will never be the same.

The true injustice here is that Cuero will not have to serve the

sentence that the Superior Court legally imposed. In failing

to follow the Supreme Court’s direction to defer to the state

court’s reasonable determination, the majority has not only

deprived Jeffrey Feldman and his family of the justice to

which they are entitled, but has also stripped California of a

tool used to ensure that criminal defendants receive sentences

that are commensurate with all of the offenses they have

committed. Such meddling by a federal court in a state’s

criminal justice process should only occur when required by

clearly established Supreme Court precedent. Because no

such precedent exists here, I respectfully dissent from our

refusal to rehear this case en banc.