Reply Brief — Tilton v. Buckley, 127 S. Ct. 2094 (2007) (No. 05-1623)

No. 05-1623 | MAR 15 2007

IN THE SUPREME COURT OF THE UNITED STATES

JAMES E. TILTON, Secretary of the California Department of

Corrections and Rehabilitation, Petitioner,

V.

BRIAN A. BUCKLEY, Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS For. THE NINTH CIRCUIT

PEITIONER’S REPLY MEMORANDUM

EDMUND G. BROWN JR.

Attorney General of the State of California

DANE R. GILLETTE

Chief Assistant Attorney Genera!

PAMELA C. HAMANAKA

Senior Assistant Attorney General

DONALD E. DE NICOLA

Deputy State Solicitor General

KRISTOFER JORSTAD

Deputy Attorney General

*NOAH P. HILL

Deputy Attorney General

*Counsel of Record

300 South Spring Street, Suite 1702

Los Angeles, CA 90013

Telephone: (213) 897-8884

Facsimile: (213) 897-6496

Counsel for Petitioner

QUESTIONS PRESENTED

Finding as a fact that the prisoner “well knew” his plea

bargain called for a sentence of fifteen years to life

imprisonment, the state court rejected his claim that the bargain

called only for a maximum sentence of fifteen years instead.

Without disturbing the state court’s factual finding, the Ninth

Circuit Court of Appeals ordered habeas corpus relief on

grounds that California contract law required the state court to

ignore the prisoner’s actual understanding of the bargain.

The Questions Presented are:

1. Did “clearly established federal law” require the California

court to apply state contract law to the plea bargain claim?

2. If so, may the federal court order habeas corpus relief

_ based on its own view that state contract law required the state

court to ignore the prisoner’s understanding of the bargain?

ii

TABLE OF CONTENTS

Page

PETITIONER’S REPLY MEMORANDUM l

CONCLUSION 10

i

TABLE OF AUTHORITIES

Page

Cases

Bell v. Cone

543 U.S. 447 (2005) 5

Brady v. United States

397 U.S. 742, 748 (1970) 1-2

Early v. Packer

537 U.S. 3 (2002) 5

Estelle v. McGuire

502 U.S. 62 (1991) 2

' Hicks v. Oklahoma

447 U.S. 343 (1980) 3-4

Holland v. Jackson

542 U.S. 649 (2000) 7

In re Jovan B.

6 Cal.4th 801 (1993) 7

In re Moser

6 Cal.4th 342 (1993) 5-6

In re Oluwa

207 Cal.App.3d 439 (1989) 7

Innes v. Dalsheim

864 F.3d 974 (2nd Cir. 1988) ]

Keeney v. Tamayo-Reyes

504 U.S. 1 (1992) 8

1V

TABLE OF AUTHORITIES (continued)

Mabry v. Johnson

467 U.S. 504 (1984)

Miller-el v. Cockrell

537 U.S. 322 (2003)

Morey v. Vannucci

64 Cal. App. 4th 904 (1998)

New Haven Inclusion Cases

399 U.S. 392 (1970)

People v. Shelton

37 Cal. 4th 759 (2006)

Picard v. Connor

404 U.S. 270 (1971)

Ricketts v. Adamson

483 U.S. 1 (1987)

Santobello v. New York

404 U.S. 257 (1971)

Smith v. Stegall

385 F.3d 993 (6th Cir. 2004)

Williams v. Taylor

529 U.S. 420 (2000)

Witters v. Washington Dept. of Servs. for the Blind

474 U.S. 481 (1986)

Statutes

28 U.S.C. § 2254(b)

Page

1-2

TABLE OF AUTHORITIES (continued)

28 U.S.C. § 2254(d)(1) 1, 3, 5-6

28 U.S.C. § 2254 (d)(2) g

No. 05-1623

IN THE SUPREME COURT OF THE UNITED STATES

JAMES E. TILTON, Secretary of the California Department of

Corrections and Rehabilitation, Petitioner,

Ve

BRIAN A. BUCKLEY, Respondent.

PETITIONER’S REPLY MEMORANDUM

1. The clearly established federal law governing plea

agreements, for the purposes of federal habeas corpus review

under 28 U.S.C. 2254(d)(1), is that due process requires a

defendant to enter his plea in a “knowing,” “voluntary and

intelligent manner.” See Brady v. United States, 397 U.S. 742,

748 (1970); see also Mabry v. Johnson, 467 U.S. 504, 509

(1984); Santobello v. New York, 404 U.S. 257, 261 (1971).

Although a defendant has a night to enforce a promise made to

him as part of his plea agreement when that agreement is

breached, this Court has never articulated a specific method for

evaluating whether a breach of a plea agreement has occurred.

Santobello v. New York, 404 U.S. at 257-67; see Smith v.

Stegall, 385 F.3d 993, 999 (6th Cir. 2004); Innes v. Dalsheim,

864 F.3d 974, 978 (2nd Cir. 1988). In fact, this Court has held

that a federal court sitting in habeas jurisdiction must proceed

“without second guessing [a state’s] finding of a breach” and is

without “license to substitute a federal interpretation of the

terms of a plea agreement for a reasonable state interpretation.”

ec eS

_

Ricketts v. Adamson, 483 U.S. 1, 5 n.3 (1987). This Court has

also repeatedly held that a federal habeas court may not grant a

prisoner relief on the basis of a perceived state law error.

Estelle v. McGuire, 502 U.S. 62, 68 (1991).

In the instant case, the en banc panel of the Ninth Circuit

ignored the controlling, clearly established federal law

governing plea agreements, and violated the command of

Estelle v. McGuire by holding that the state courts had a duty

under the federal Constitution to determine whether

respondent’s plea agreement complied with California contract

law. Pet. For Cert. A9-A10. The Ninth Circuit then substituted,

in direct contravention of this Court’s precedent, “a federal

interpretation of the terms of a plea agreement for a reasonable

state interpretation.” Ricketts v. Adamson, 483 U.S. at 5 n.3.

The Ninth Circuit did so without ever concluding that

respondent did not enter his plea in a voluntary, knowing, or

_ Intelligent manner. Pet. for Cert. Al-A17.

In his Opposition, respondent contends that the Ninth

Circuit’s holding in the instant case was entirely proper and his

analysis simply echoes that of the Ninth Circuit’s opinion. He

reiterates the Ninth Circuit’s errors and declines to come to

grips with the Questions Presented. Opp. 14-18. His argument

reduces itself to the assertion that the California courts violated

the federal Constitution by failing to follow their own process

for evaluating a claim of a breach of the plea agreement. Yet he

fails to identify any clearly established federal law which

required the state court to confine its review of his claim to

abstract considerations of the paper record as if it were

construing a commercial contract. On the contrary, the state

courts were entitled, and in fact required, to determine what

respondent understood his plea agreement to mean in order to

assess whether he entered the plea in a knowing and voluntary

manner. Brady v. United States, 397 U.S. at 748; Mabry v.

Johnson, 467 U.S. at 509; Santobello v. New York, 404 U.S. at

261.

In this case, the state superior court concluded that

respondent “well knew” that his plea agreement required an

indeterminate term of fifteen years to life. Pet. for Cert. H1-H3.

The Ninth Circuit erred in substituting a review of the process

used by the state court for a review of the result reached in the

state court, and the Ninth Circuit’s conclusion that the

reasonableness of the state court’s determination regarding

respondent’s state of mind “is wholly irrelevant” is indefensible

in light of the existing precedent of this Court. Pet. for Cert.

A12. Nothing in this Court’s opinion in Ricketts, or in any

other case of this Court, supports the Ninth Circuit’s conclusion

in the instant case that as a matter of “clearly established federal

law” under section 2254(d)(1), a state court must construe a

plea agreement according to a particular set of state-law

principles identified by the federal court. And no case before

this one has held that a federal court may reinterpret a state

court’s reasonable construction of a plea agreement to

_ determine whether a breach has occurred, rather than confining

itself to the relevant constitutional determination of whether a

plea was entered in a knowing, voluntary, and intelligent

manner.

Respondent’s defense of the Ninth Circuit opinion relies on

a single case, Hicks v. Oklahoma, 447 U.S. 343 (1980), to assert

that California created a liberty interest in the process by which

it evaluates plea agreements. Opp. at 16, 19. Hicks is entirely

inapposite. In Hicks, this Court held a state law guaranteeing a

criminal defendant certain procedural rights at a sentencing

hearing, even if not constitutionally required, may give rise to

a liberty interest protected from arbitrary deprivation by the Due

Process Clause of the Fourteenth Amendment. Hicks, 447 U.S.

at 346. The constitutional requirements controlling plea

agreements, unlike the procedural nghts at issue in Hicks, were

already clearly established matters of federal law, and governed

by the requirement that such agreements must be entered in a

knowing, voluntary, and intelligent manner. This is the

standard adhered to by the state superior court in this case, but

it is a standard that the en banc panel of the Ninth Circuit

wholly ignored. Pet. for Cert. A2-A17, H1-H3. Moreover,

respondent never alleged a Hicks violation in the California

Supreme Court, in the district court, or in the Ninth Circuit, and

the Ninth Circuit did not rely upon Hicks in any manner in its

Opinion. (Pet. for Cert. at Al-A17.) Thus, not only is

respondent’s reference to Hicks misguided, but the application

of Hicks to respondent’s claim would render the claim

unexhausted. 28 U.S.C. § 2254(b); Picard v. Connor, 404 U.S.

270, 275 (1971).

2. Even assuming that Ricketts permits a federal court to

conduct a review of a state court’s determination of breach for

reasonableness, the state courts’ rejection of respondent’s claim

was eminently reasonable and that determination was entitled

to deference. The Ninth Circuit did “not explain the nature of

the deference it purport[ed] to afford the state courts, and one is

_ unable to detect any such deference in the approach” taken by

the Ninth Circuit. Ricketts v. Adamson, 483 U.S. at 5 n.3.

Respondent filed a state habeas petition in the Ventura

County Superior Court, through counsel, alleging both that he

had been misadvised during the plea hearing and that he

understood his plea agreement to require that he serve no more

than a determinate term of fifteen years in state prison. The

Superior Court reviewed the petition filed by respondent and his

supporting exhibits: the felony complaint, the prosecutor’s offer

letter, the felony disposition form, and the reporter’s transcripts

of respondent’s plea and sentencing hearings. Pet. for Cert. H1-

P3./ The superior court ordered the district attorney to file a

1. Respondent correctly notes that the original cover sheet of the

reporter’s transcript of his sentencing proceeding in state court erroneously

provides that the hearing occurred on March 1, 1987, rather than on the

correct date, March 1, 1998. Opp. 12 nS. Petitioner reproduced the cover

sheet with the erroneous date in the Appendix to the Petition for Certiorari.

Pet. for Cert. K1. Petitioner’s Index to the Appendix also mislabeled this

exhibit as a transcript of the plea proceedings rather than the transcript of the

sentencing proceedings.

return. The district attorney’s return included a declaration of

the prosecutor, Donald Glynn, denying that the People had ever

offered respondent anything other than an indeterminate term of

fifteen years to life under the plea agreement. Moreover, the

prosecutor attached respondent’s testimony given during the

guilt phase of the Fauber trial, three days after the entrance of

the plea, in which respondent testified that he understood his

plea agreement to require a term of “15 years to life.” Pet. for

Cert. J1-J6. The superior court then directed respondent to file

a traverse, and told respondent that it was specifically concerned

with his testimony during the guilt phase of the Fauber trial.

Pet. for Cert. 11. Respondent filed a traverse, but presented no

additional evidence in superior court and did not address the

superior court’s concern regarding his testimony during the

Fauber hearing. The superior court denied habeas relief in a

written opinion, finding that “the advisement was that the

_ sentence would be 15 years to life as provided by law, and that

the [respondent] well knew this.” Pet. for Cert. H1-H3, I, J1-

J6. Importantly, in denying relief the superior court cited to Jn

re Moser, a case that specifically discusses the “distinction

between a mere misadvisement with regard to the consequences

of a guilty plea and a violation of a plea agreement.” Jn re

Moser, 6 Cal.4th 342, 354-355, 24 Cal. 4th 2d 723 (1993).

Respondent errs in suggesting that the superior court did not

apply California’s own contract law to his claim. Opp. 17-18.

Assuming a state law contract analysis was required by clearly

established federal law, the superior court had no duty to

expressly state that it was engaging in a contract analysis to

comply with 28 U.S.C. § 2254(d)(1). See Early v. Packer, 537

U.S. 3, 8 (2002) (a state court need not provide a “formulary

statement” on a particular issue where “the fair import” of its

holding its evident from its opinion); see also Bell v. Cone, 543

U.S. 447, 455 (2005). Nevertheless, the state superior court’s

citation to Jn re Moser demonstrates that it applied the relevant

state law governing violations of plea agreement to respondent’s

case. Pet. for Cert. H3. Moreover, the superior court’s analysis

itself demonstrates that it applied the relevant state law to

respondent’s case. The superior court looked to the competing

provisions regarding respondent’s sentence contained in the

felony disposition statement and in the reporter’s transcript of

the plea proceedings, then turned to the extrinsic evidence of

respondent’s testimony during the guilt phase of the Fauber

trial, in which respondent testified that he understood his plea

agreement to require a term of fifteen years to life, to resolve the

existing ambiguity. The superior court’s act of looking to

extrinsic evidence to resolve an ambiguity in the agreement was

entirely proper and reasonable under California state law, as

respondent’s subsequent conduct in testifying that he

understood his plea agreement to require a prison term of fifteen

years to life helped resolve any ambiguity attending to the

agreement. See People v. Shelton, 37 Cal. 4th 759, 767, 37 Cal.

Rptr. 3d 354 (2006); Morey v. Vannucci, 64 Cal. App. 4th 904,

_ 912, 75 Cal. Rptr. 573 (1998). Respondent does not dispute

than an ambiguity existed, but he simply omits, as did the Ninth

Circuit, the provision of California law providing that a court

must look to extrinsic evidence of subsequent conduct to

resolve an ambiguous provision of a plea agreement or contract.

Opp. 19-21. On this basis, too, it cannot be said that the state

superior court’s rejection of respondent’s claim regarding his

plea agreement was contrary to, or constituted an objectively

unreasonable application of, clearly established federal law. 28

_ § 2254(d)(1).

3. Respondent asserts that his testimony during cross-

examination of the penalty phase of the Fauber trial, in which

he responded to a question regarding when he expected to be

released or paroled from prison by stating, “seven and a half

years,” “reflected his understanding that he would receive a

maximum sentence of 15 years in custody,” and he further

complains that the prosecutor, Mr. Glynn, had a duty to

disabuse him of this belief. Opp. 11, 25; see Pet. for Cert. L2.

However, respondent’s expectation that he would be paroled in

seven and a half years was consistent with a reasonable

understanding of parole eligibility for second degree murder,

and the required indeterminate term of fifteen years to life,

under California law at the time of respondent’s sentence. Jn re

Oluwa, 207 Cal.App.3d 439, 255 Cal.Rptr. 35 (1989). Oluwa,

decided one year after respondent was sentenced, clarified that

a defendant sentenced to an indeterminate term of fifteen years

to life for second degree murder would be eligible for parole

after ten, rather than seven and one-half, years of custody. Jd.

at 442-47. Prior to Oluwa, there was great confusion under

state law with respect to whether a defendant sentenced to an

indeterminate term of fifteen years to life for second degree

murder would be eligible for parole after of seven and a half, or

ten, years. Jd. at 443; see In re Jovan B., 6 Cal.4th 801, 816 n.

10, 25 Cal.Rptr.2d 428 (1993) [discussing impact of Oluwa].

Because California law regarding the minimum parole

eligibility of defendants convicted of second degree murder was

in flux at the time of respondent’s testimony at the Fauber trial

and his subsequent sentencing hearing, it cannot be said that

Mr. Glynn had any to duty to “disabuse” respondent of any

particular belief regarding parole eligibility at the time. Opp.

11-12, 25; see Pet. for Cert. C21-C22.

4. Respondent appears to suggest that Petitioner had some

duty to develop the factual record in state court on his behalf.

Opp. 25-26. Any failure on Respondent’s part to develop his

own factual record in state court is solely attributable to

respondent and his counsel at the time. Had respondent wished

to present additional evidence to the superior court, he had

every Opportunity to do so as the superior court invited

respondent to produce additional evidence prior to respondent’s

filing of the traverse. Pet. for Cert. 11. Respondent’s failure to

take the superior court up on its invitation demonstrates that he

was content to rely on the state of the record before the superior

court. See Holland v. Jackson, 542 U.S. 649, 652-653 (2000);

Williams v. Taylor, 529 U.S. 420, 437 (2000).

5. Respondent relies extensively on evidence presented

during the federal evidentiary hearing in arguing the propriety

of the Ninth Circuit’s judgment in this case and he has attached

selected excerpts from that hearing to his Opposition.

However, the district court erred in conducting an evidentiary

hearing in this case as it never even attempted to determine the

reasonableness of the state courts’ findings “in light of the

evidence presented in the state court proceedings.” 28 U.S.C.

§ 2254(d)(2); Miller-el v. Cockrell, 537 U.S. 322, 340 (2003);

Keeney v. Tamayo-Reyes, 504 U.S. 1, 9 (1992); see Pet. for

Cert. C15-C19, D32-D33. Recognizing this fact, the en banc

panel of the Ninth Circuit did not rely on the evidence presented

during the federal evidentiary hearing in affirming the district

court’s grant of habeas relief to respondent. Pet. for Cert. A8-

AY (“We affirm, although our analysis differs from the district

court’s in some respects.”’). Instead, the Ninth Circuit focused

_ solely on the evidence presented in state court, and concluded,

based on this evidence alone, that respondent was entitled to

relief. Pet. for Cert. Al3 n.8. Thus, respondent’s Opposition

errs in focusing on evidence which was wholly irrelevant to the

Ninth Circuit’s conclusion that relief should be granted.

6. Respondent asserts that the “handwritten original” of the

felony disposition form “proves that during the change of plea

hearing... the prosecutor added certairt handwritten portions

to the agreement, initialed those additions, and signed the

bottom of the amended agreement.” Opp. at 8-9; see Pet. for

Cert. N5 (last paragraph). Respondent further alleges that he

was not shown the portion of the statement at issue prior to

entering his plea. Opp. at 8-9. The original of the felony

disposition form, which includes a portion written in the hand

of the prosecutor, has never been introduced during any habeas

corpus proceeding in state or federal court. Respondent appears

to refer to a copy of the original, which has been presented to

every level of the state and federal courts in these proceedings.

Pet. for Cert. NS-N9. Although the district court made a factual

finding following the federal evidentiary hearing that certain

language in the felony disposition statement was added to the

document by the prosecutor after the document was signed by

respondent, nothing in the document itself, whether the original

or a copy, supports this allegation. Opp. 8-9; see Pet. for Cert.

D7 n5. The reporter’s transcript of the plea proceedings

demonstrates that respondent was indeed shown the document

prior to entering his plea. Pet. for Cert. M7. More importantly,

the district court’s finding on this issue, stemming from the

improvidently granted federal evidentiary hearing, was not

relied upon by the Ninth Circuit in granting habeas relief to

respondent. Pet. for Cert. A1l3 n.8.

7. Respondent devotes a large portion of his Opposition to

a section entitled “Concluding Remarks.” Opp. 22-26. The

remarks contained therein, and similar remarks appearing

_ elsewhere throughout the Opposition, appear more relevant to

an application for parole than to opposing the specific legal

claims contained in the Petition for Writ of Certiorari. See Opp.

2, 13 n.7, 22-26. Respondent also sets forth a plethora of

multiple-hearsay statements, attributing various extrajudicial

statements not contained in the record to the attorneys,

investigators, parole agents, and judges involved in these

proceedings. Opp. 13 n. 7, 22-26. Respondent’s concluding

remarks constitute an attempt to garner sympathy by injecting

into the case a host of irrelevant issues centering on his

custodial status, which are unsupported by the record and not

properly before this Court. See Witters v. Washington Dept. of

Servs. for the Blind, 474 U.S. 481, 487 (1986) (a question

presentec must be decided on “facts as they appear in the

record’’); New Haven Inclusion Cases, 399 U.S. 392, 450 n.66

(1970) (matters outside of the record will not be considered).

Respondent errs in asserting that “everyone . . . completely

believes he has earned his freedom - that he should be paroled.”

Opp. 23. The California Board of Parole Hearings, the

appropriate executive agency governing parole in the State of

10

Califonia, has never had the opportunity to decide the propriety

of respondent’s release, and it is this agency which must

“believe” that respondent “has earned his freedom” and that he

“should be paroled.” Opp. 23. Respondent’s physical custodial

status is not directly at issue in these proceedings, and the

propriety of his continued release should be left to the

California Board of Parole Hearings. Respondent’s repeated

references to unsubstantiated hearsay and matters outside the

record of the instant case should be ignored.

CONCLUSION

The Petition for Writ of Certiorari should be granted.

Dated: March 15, 2007

Respectfully submitted,

EDMUND G. BROWN JR.

Attorney General of the State of California

DANE R. GILLETE

Chief Assistant Attorney General

PAMELA C. HAMANAKA

Senior Assistant Attorney General

DONALD E. DE NICOLA

Deputy State Solicitor General

KRISTOFER JORSTAD

Deputy Attorney General

*NOAH P. HILL

Deputy Attorney General

*Counsel of Record

Counsel for Petitioner

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