Lead Opinion
Concurrence by Judge HURWITZ;
Dissent by Judge REINHARDT
OPINION
Candace Lee Fox pleaded guilty to second-degree murder in 1984 in California Superior Court and, pursuant to a plea agreement, was sentenced to a term of imprisonment of fifteen years to life. Approximately five years later, Pox successfully petitioned to withdraw her guilty plea after establishing that the sentencing court failed to inform her that she would receive a mandatory term of lifetime parole as a direct consequence of her plea. At her subsequent trial, Fox was convicted of first-degree murder, first-degree burglary, and the special circumstance that the murder was committed in the course of a burglary. She was sentenced to life imprisonment without the possibility of parole. In this 28 U.S.C. §2254 habeas proceeding, Fox now argues that the State originally promised her a term of imprisonment no greater than seven and one-half years in exchange for her plea, and asks for specific performance of that purported agreement.
We refuse Fox’s request and affirm the district court, because Fox chose in the state habeas proceedings to seek vacation of her conviction, rather than specific performance of the purported plea agreement. She therefore has no due process right to specific performance of the rescinded agreement.
FACTUAL BACKGROUND
In June 1984, Fox, Janet Meyer, Scott Peters, and Eddie Rangel drove to Lewis Levy’s apartment to collect $100 that Levy allegedly owed Meyer for sexual services. Meyer told the others that Levy had $20,000 to $30,000 in travelers checks in his apartment. The group forced their way into the apartment and held Levy at gunpoint while they searched for cash and travelers checks. After they found Levy’s wallet and $20,000 in travelers checks, Meyer and Rangel departed to purchase cocaine, leaving Fox and Peters with Levy.
Levy took this opportunity to run for the door. Peters struck Levy over the head with the barrel of his revolver until the handle broke. Peters then attempted to shoot Levy, but his gun jammed. Fox handed Peters a large steak knife from Levy’s kitchen. Peters attempted to stab Levy twice, but the blade bent and did not penetrate. At that point, Levy fell to the ground nearly unconscious. When Meyer and Rangel returned with the cocaine, Levy remained semiconscious on the ground. After Rangel left, Peters explained to Meyer that Levy had tried to escape.
After Fox, Peters, and Meyer used the cocaine, Meyer stated that she was not leaving the apartment until Levy was dead. Meyer took a Swiss Army knife from her pocket and repeatedly stabbed Levy. Fox struck Levy over the head with a beer bottle, and Peters attempted to strangle Levy with a phone cord. Nonetheless, Levy was still alive. Peters then left the apartment and waited in Fox’s car. Twenty minutes later, Fox and Meyer left the house with two shopping bags containing the gun and knives used in the attack. They told Peters that Levy was dead.
The next day, the group cashed several of Levy’s travelers checks and purchased drugs. The following morning, Meyer’s
PROCEDURAL BACKGROUND
A. Fox’s Guilty Plea and Sentence
Fox, Meyer, and Peters were charged with first-degree murder, first-degree burglary and robbery, and the special circumstances of (a) murder during the commission of a robbery and burglary and (b) use of a deadly weapon in the murder, making them eligible for the death penalty. Fox agreed to plead guilty to second-degree murder
The plea agreement was not reduced to writing. Fox argues that she was promised she “would be paroled after serving 7.5 years with good behavior.” The State contends that Fox was promised she would be sentenced to fifteen years to life in prison, but would be eligible for parole consideration after seven and one-half years. Fox’s change of plea hearing on November 6, 1984, supports the State’s contention:
PROSECUTOR: By way of sentence ... you’re going to receive — as we discussed, you’re going to receive 15 years to life on this case. Do you understand that?
FOX: Yes.
PROSECUTOR: That is the sentence for second degree murder. There are no enhancements. It’s a straight second degree and you’re going to receive a sentence from [the court] of 15 years to life.
FOX: Yes.
PROSECUTOR: And do you understand that it’s up to you how much time you will do. It’s indeterminate. We can make no promises or representations on what the Board of Prison Terms will or will not do or when they will release you. There is a life-time top. Do you understand that?
FOX: Yes.
After being so advised, Fox pleaded guilty. The court accepted her plea as knowing and voluntary. There is thus no contest that Fox agreed to a sentence of fifteen years to life. But, Fox was not advised during the plea colloquy that she also faced a lifetime term of parole when released.
At the sentencing hearing, Fox’s counsel asked for a continuance to amend the probation report. The court responded: “I don’t understand exactly what you’re doing here, Mr. Ficht. She is going to receive a sentence of fifteen to life, is that correct? Fifteen to life, and that’s going to be her sentence.” In response, Ficht stated that Fox’s probation report was “the most outrageous document I’ve sden.” The court told Ficht to “file an amendment. She’s going to be there for quite awhile. I don’t understand what the difference is. She should get going. She’s losing time.” Any parole consideration was only discussed during the following exchange:
FICHT: Also, if I may, for the record, Your Honor, I believe the People have indicated as part of the plea bargain that [Fox would] be looking at obtaining probation — parole, excuse me, in seven and a half years. Is that correct, [prosecutor]?
PROSECUTOR: That’s correct.
TRIAL COURT: All right. Understand that?
Fox now argues that this exchange “modified the plea agreement” to require that she be paroled after seven and one-half years in prison. However, neither the parties nor the court acknowledged any modification of the plea agreement at the hearing. Following the exchange between Fieht and the prosecutor, the court sentenced Fox to fifteen years to life in state prison without any reference to parole eligibility or release on parole, stating: “All right. Miss Fox, the court has read and considered the probation report. Probation is denied. You are sentenced to the state prison for the term prescribed by law, which in this case is fifteen years to life.” Fox did not object.
B. Post-Conviction Proceedings
On July 1, 1986, Fox filed her first petition for a writ of habeas corpus in state Superior Court. Rather than seeking specific performance of the alleged plea agreement, Fox instead sought to withdraw her plea of guilty on two grounds.
First, Fox alleged that, when she entered her plea, she “did not understand that her term could exceed seven and one-half years even if her prison behavior were good.” Instead, Fox claimed that she believed that she was “entitled to release after seven and one-half years, provided that she behaved properly in state prison.” Fox acknowledged that such a belief was contrary to California law, because a petitioner “is not entitled to release after serving the minimum period of incarceration.” Fox also acknowledged that “no firm promise ... was given [to her] before her actual sentencing” as to eligibility for parole in seven and one-half years. However, Fox maintained (citing the portion of the sentencing proceedings excerpted above) that the “the parties understood that if [Fox] was cooperative and fully truthful in her testimony, she would be eligible for parole after 7 1/2 years ... and in fact would receive parole if she behaved herself in state prison.” Fox also argued that, before entering her plea, she “was not advised of the mandatory post-incarceration parole term.” Fox asserted that, had “she known the full consequences of her guilty plea, she would not have pled guilty.”
Second, Fox asserted that she had received ineffective assistance of counsel during the plea process and that she was “not in fact guilty of second degree murder.”
On August 26, 1986, Fox filed a second petition in the Court of Appeal, alleging “that her sentencing was unlawful and the matter should be remanded for resentenc-ing.” In this petition, Fox repeatedly insisted that she sought “withdrawal [of] her plea of guilty,” making the same arguments as those in her Superior Court petition. On September 4, 1986, the Court of Appeal denied the petition as not ripe, because Fox had not yet served seven and one-half years in prison.
On January 24, 1989, after serving just over four and one-half years in prison, Fox
On November 26, 1990, shortly before the new trial was to begin, Fox filed a motion seeking, for the first time, to enforce the previous plea agreement as she understood it — that is, assuring release after seven and one-half years — or, in the alternative, preventing the State from seeking more than a second-degree murder conviction at trial. The State argued that, because Fox had successfully withdrawn her plea of guilty, there was no plea agreement to enforce. The Superior Court denied “specific performance of the original case settlement.”
Fox was tried on the original charges of first-degree murder, first-degree burglary, and the special circumstance that the murder was committed in the course of a burglary. On January 28, 1992, the jury returned guilty verdicts on all charges. On May 13, 1992, Fox again requested that the court order specific performance of her prior plea bargain, arguing she was entitled to eligibility for parole in seven and one-half years. On May 29, 1992, the court denied the motion and sentenced Fox to life imprisonment without the possibility of parole.
Fox appealed, asserting, among other things, that “the trial court erred in denying appellant’s motions for specific performance of her plea bargain,” citing Santobello v. New York,
When Fox pled guilty in 1984, she got what she bargained for, a sentence of 15 years to life, with a promise of parole in seven and one-half years. Five years into her sentence (with only two and one-half years to go), Fox decided she didn’t like the deal she’d made, petitioned for a writ of habeas corpus and succeeded in having her plea set aside, on the ground she had not been fully advised of the consequences of her guilty plea (her alternative ground of duress was rejected). She clearly felt very strongly that the obligation of a lifetime on parole was not something she could accept.... She got exactly what she asked for — her plea was set aside and the People were required to prove the charges against her.[6]
Fox then filed a petition for review in the California Supreme Court which was summarily denied on June 30 1994.
On April 22, 1997, Fox filed a new habe-as petition in the Superior Court, which was denied on May 14, 1997. Fox filed another habeas petition in the Court of Appeal on April 23, 1998. On July 24, 1998, that court remanded for an evidentiary hearing on whether Fox received ineffec-five assistance of counsel in connection with the habeas petition that resulted in her guilty plea being withdrawn. The Superior Court “cabined” its inquiry to the question of whether counsel had advised Fox that, if she successfully withdrew her plea, she could face a new trial and a longer sentence, including a potential life sentence without the possibility of parole. During the two-day hearing, Fox’s habeas counsel, Rowan Klein, testified that he had advised Fox that, if her habeas petition were granted, she would go back to square one and face the possibility of a sentence of life without parole. When asked if he considered seeking specific enforcement of the original plea bargain prior to seeking to withdraw the plea, Klein responded,
I’m sure I did but ... [the reference to obtaining parole in seven and a half years wasn’t] a plea bargain because it’s an attorney uttering incompetent words at the time of sentencing. It’s not something that is legally binding on The Court or the District Attorney, unfortunately. I mean, you can try and turn it into that through alliance and whatever, but, legally, it probably isn’t the strongest argument. And that’s why I sought relief on the stronger argument, which was the failure to advise her of the parole consequences.... My assessment was that the comments of Bruce Ficht [Fox’s counsel at sentencing] are ... anindication that he didn’t know what he was taking about . -.. with respect to the meaning of a 15-to-life sentence. To me, a plea bargain is when the parties may-have a discussion at the time of the plea, not when an attorney makes a gratuitous comment at the time of sentencing.
The Superior Court denied Fox’s petition, finding that she had been advised prior to the 1989 grant of habeas “of all the possible ramifications that were legally available, including — and it may even have been the death penalty — but certainly the option of life without the possibility of parole; that she’d go back to square one.”
On February 9, 2001, Fox filed a new habeas petition in the California Court of Appeal, which was denied without explanation or citation to authority on August 15, 2001. On November 24, 2003, Fox filed a habeas petition in the California Supreme Court, which was denied on July 14, 2004, in an order stating: “Petition for writ of habeas corpus is DENIED. (See In re Robbins (1998)
Fox filed a pro se 28 U.S.C. §2254 habeas petition in the district court on August 13, 2004, claiming that the state courts denied her due process rights by failing to specifically enforce her 1984 plea agreement. A magistrate judge ultimately recommended denying the petition, noting that Fox had “successfully moved to withdraw her guilty plea before she was eligible for release on parole; therefore, the State could not have actually breached the parole agreement in the manner petitioner claims.” The district court adopted the report and recommendation, denied the petition, and issued a certificate of appealability on the question of the specific performance of Fox’s 1984 plea agreement. This appeal timely followed.
STANDARD OF REVIEW
The district court’s denial of a petition for a writ of habeas corpus is reviewed de novo. Jones v. Taylor,
Under the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”), a federal court may not grant a habeas petition filed by a person in state custody:
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 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). However, where “no state court has adjudicated [the] claim on the merits, and the state has established no procedural bar to its consideration, the strictures of 28 U.S.C. § 2254(d). do not apply, and our review is de novo.” Riley v. McDaniel,
AEDPA applies '‘to a single state court decision, not to some amalgamation of multiple state court decisions.” Barker v. Fleming,
The last “reasoned” decision here was the California Supreme Court’s 2004 order denying Fox’s habeas petition with a citation to In re Robbins,
The State urges that we apply AEDPA deference to the 1994 Court of Appeal decision. But, we need not decide that issue. We may “deny writs of habeas corpus under § 2254 by engaging in de novo review when it is unclear whether AEDPA deference applies, because a habeas petitioner will not be entitled to a writ of habeas corpus if his or her claim is rejected on de novo review.” Berghuis v. Thompkins,
DISCUSSION
Fox claims she has a due process right to specific performance of her original plea deal, in- which she alleges the State promised to release her from prison after seven and one-half years. For purposes of our analysis, we assume (without deciding) that the State promised Fox release after seven and one-half years and that the State breached that promise. Nevertheless, Fox is not entitled to specific performance of her plea agreement, because she voluntarily chose to withdraw her guilty plea, thereby voiding her plea agreement. There is thus no plea agreement to enforce. Under these circumstances, there is no precedent suggesting that Fox was denied due process by denying her specific performance.
As the Court of Appeal observed, Fox’s successful habeas petition sought only to withdraw her guilty plea as not knowing and voluntary, rather than to enforce a plea agreement. At no point in the habeas proceedings, which culminated in the state court’s order allowing Fox to withdraw her plea, did Fox seek to enforce the plea agreement; rather, she sought to set it — ■ and the accompanying guilty plea — aside. Although Fox argued that she was serving a longer sentence than she expected, she advanced that argument solely to show that she was not advised of the extent of the sentence she would serve if she pleaded guilty. She simultaneously argued both her actual innocence and that the plea was invalid because she was never informed of the possibility of a parole term following release. The record indicates that Fox
Fox’s current petition rests on the theory that a criminal defendant has a due process right to bind the government to a plea agreement even after choosing to withdraw the plea rather than seek specific performance of the plea agreement. Fox identifies no precedent recognizing that right, nor have we found any. Indeed, the weight of persuasive precedent cuts the other way. We have instead explained that “[w]hen the district court exercises its power under the. Federal Rules to reject a plea agreement or permit a defendant to withdraw his plea, it is clear by implication that the parties are consequently released from their obligations under the plea agreement.” United States v. Partida-Parra,
Fox urges us to apply state contract law. See United States v. Barron,
In Santobello v. New York, the Supreme Court held that the remedies for a breach of a plea agreement were'either specific performance of the agreement or rescission of the entire agreement and withdrawal of the guilty plea, to be determined
But, here, rather than seek specific performance, Fox chose to withdraw her guilty plea, voiding the plea agreement. She sought one of the remedies under Santobello, and received it.
Fox now asserts that rescission of the plea agreement (1) was forced by the State’s breach and (2) she never waived her right to assert a breach of the plea agreement. We have found no authority, and Fox cites none, to support her first contention. In any event, the State did not coerce Fox to seek to withdraw her plea, rather than seek to enforce the alleged agreement. Rather, the State steadfastly maintained that Fox was entitled to no relief at all. At the time Fox sought state habeas relief, Santobello was the law of the land. Nothing prevented Fox, acting with the assistance of counsel, 'from seeking specific performance. Yet, she chose not to do so; her counsel, whose effectiveness is not today at issue, testified that he considered but rejected that option.
Fox maintains that, even after withdrawing her plea, she had a due pro
By the time Fox sought specific performance, the plea agreement had been rescinded. We confronted similar circumstances in United States v. Burdeau,
We agree with our dissenting colleague that the circumstances of this case are unfortunate. The others convicted of the offense for which Fox is serving a life sentenced received lesser terms, and she kept her promise of cooperation to the State. Indeed, she would have been better off had the state court never granted her habeas petition; she would at least now be eligible for parole. But she chose to rescind a plea agreement that treated her as well as her co-defendants, despite her counsel’s advice that this could return her to ground zero. No Supremfe Court authority or other precedent establishes that the Due Process Clause requires the enforcement of a plea agreement under these circumstances. Accordingly, the district court did not err in denying Fox’s § 2254 petition.
AFFIRMED.
Notes
. When Fox pleaded guilty, second-degree murder in California was subject to a mandatory minimum of fifteen years to life. Cal. Penal Code § 190(a).
. On November 9, 1984, Fox testified for nearly five hours at Peters’s preliminary hearing. Peters later pleaded guilty to second-degree murder. Meyer also pleaded guilty to second-degree murder.
. The dissent states that Fox "never seriously denied her guilt.” Dissent 60. However, Fox specifically claimed in her first habeas petition that "she [was] not in fact guilty of [the] offense and was unaware of [the defense of duress] at the time she entered her plea.”
. Fox also alleged that she received letters from Peters, in which he took full responsibility for the murder.
. The dissent states that the State changed its position at this point and "admitted for the first time that, pursuant to the plea agreement, Fox was to serve 'about 7 1/2 years.' ” Dissent 36. We disagree with this characterization of the State’s argument.
From the beginning, the State has maintained that the parties bargained for a sentence of fifteen years to life for second-degree murder. The State has conceded that, pursuant to the plea agreement, Fox would be eligible for parole after seven and one-half years, though the only evidence in the record of such a promise was the exchange between Fox's counsel and the prosecutor at the sentencing hearing. The State has also argued that, notwithstanding such a promise, the minimum parole eligibility under California case law for Fox’s sentence was ten years, and thus a promise of eligibility before that time would have been unenforceable.
Before the California Court of Appeal, the State argued that the plea agreement was no longer enforceable because Fox had withdrawn her plea. The statement in the State’s brief that, "pursuant to the plea agreement, [Fox] would serve about 7 1/2 years” was not, as the dissent puts it, evidence that the State had previously lied, but rather .a shorthand version of the plea agreement between the parties. The California Court of Appeal then
6. The Court of Appeal acknowledged "the inevitability of a habeas petition attacking the competency of the attorney who filed the petition to set aside Fox’s guilty plea.” However, it noted that such a claim would necessarily require "an evidentiary hearing to determine what Fox's attorneys told her at the time the decision was made to attack the guilty plea [given that she had already served over four years of her sentence].” Thus, such a "petition should be addressed to the trial court, not to us.”
The Court of Appeal concluded that Fox received "a sentence of 15 years to life, with a promise of parole in seven and one-half years,” and thus "got what she bargained for.” However, as Fox acknowledged in her first habeas petition, she was not entitled to parole after seven and one-half years under her original sentence. This error is not consequential, because the Court of Appeal's ultimate conclusion — that Fox “got exactly what she asked for” when her habeas petition was granted and the original conviction set aside — is correct.
. Fox does not claim prosecutorial vindictiveness in this habeas proceeding.
. There are limits to the analogy to contract law: "A plea bargain is not a commercial exchange.... On rescission of the agreement, the prisoner can never be returned to his 'original position': he has served time by reason of his guilty plea and his surrender of basic constitutional rights.” Barron,
. Our recent decision in Cuero v. Cate,
Unlike the defendant in Cuero, Fox opted not to seek specific performance in her first habeas petition. Therefore, the Superior Court here did not fail to reasonably apply the principles of California contract law when it granted Fox the very remedy she requested.
The dissent disagrees with our characterization of Cuero, stating that "[h]ere, as in Cuero, the state breached its agreement, and here, as in Cuero, the breach resulted in the withdrawal of the plea agreement.” Dissent 1006. This is incorrect. Nowhere in Fox’s first habeas petition did she seek specific performance or argue that the government had breached the agreement. Instead, from the outset, Fox sought to withdraw her plea, arguing that "she did not understand” the terms of the agreement and that her lawyer had provided ineffective assistance. In short, Fox got exactly what she requested. Cuero did not.
Concurrence Opinion
concurring:
Candace Fox committed a gruesome and senseless crime. She was ultimately convicted of first-degree murder, and does not argue in this § 2254 proceeding that she did not receive a fair trial.
Nonetheless, as both Judge Smith and Judge Reinhardt note, this is a troubling case. Fox originally pleaded guilty to second-degree murder in exchange for her testimony against a co-defendant. She held up her end of the bargain, testifying for five hours in a preliminary hearing. Yet both that co-defendant ahd another received lesser sentences than the one Fox is now serving. Moreover, the record of the plea bargaining process is,' to put it charitably, a mess. At one point the record suggests that Fox was promised release from prison after seven and one-half years, and at another reflects that Fox was clearly advised that her sentence was indeterminate, and that the parole board would ultimately decide when she would be released.
But, all this became moot when the superior court granted Fox’s habeas petition, setting aside her guilty plea and conviction. That is the remedy she repeatedly sought. Indeed, her habeas counsel testified that he thought about seeking specific performance of the purported plea agreement, but decided against it. That decision
Fox does not today urge that she received ineffective assistance of counsel in the state habeas proceedings, and the state courts have found that she did not. Indeed, the record suggests that, when she sought habeas relief, Fox was unwilling to accept the original bargain. She claimed that she never would have pleaded guilty had she known of the required term of lifetime parole upon release, and asserted actual innocence. The State might well have chosen in the interests of justice to proceed only with second-degree murder charges against Fox on retrial. But, as Judge Smith explains, its decision not to do so was not unconstitutional. Still, having had a hand in producing an outcome that disfavored the one defendant who cooperated with the prosecution, the State could remedy this situation either through clemency or by once again offering Fox the chance to plead guilty to second-degree murder. But, we cannot order such relief; our role in this matter is constrained.
. Judge Reinhardt's dissent is premised on the notion that, although Fox chose to vacate her plea agreement rather than to specifically enforce it, the state court violated the Due Process Clause by giving her exactly what she sought. But neither Cuero v. Cate,
Dissenting Opinion
dissenting:
Candace Fox’s crime was not a pretty one. Yet, in 1984, California made her a promise in exchange for her promise of consideration it badly wanted from her. It promised her that, if she testified against her co-defendant and pleaded guilty to second degree murder, she would be paroled, assuming good behavior, in seven and one-half years. If the State had kept its word, Fox would have been released from prison over two decades ago. Instead, because the State brazenly broke its promise to her and lied about it to the courts, Fox will now likely spend the rest of her life in prison, unless the governor commutes her sentence.
Thirty years ago, in 1986, when Fox filed her first habeas petition, this case should have had a simple resolution. There would be no petition before us today if the State had simply assured Fox that she would receive the term of imprisonment that she and the State had agreed to when she forfeited her freedom, or if the State courts that heard Fox’s 1986 petitions had fulfilled their obligation, under Santobello v. New York,
In the thirty-odd years since Fox first sought to hold the State to its bargain, she has been failed by many people: the state prosecutors who abused her trust, the state judges who failed in their obligation to provide her with an appropriate remedy for the State’s broken promise, and the attorney who sought to “withdraw” her plea rather than seek the remedy she had desired from the beginning — specific performance of her bargain. The majority, while purporting to recognize that this is an “unfortunate” situation, concludes that it cannot provide Fox with a remedy due to the procedural posture of this case. While it comes as no surprise that my colleagues honestly believe that our habeas jurisprudence’s rigid adherence to procedural rules demands a result so antithetical to justice, I cannot in good conscience concur. In my opinion, due process, at its core, requires that every judicial proceeding be fundamentally fair, see Lassiter v. Dep’t of Soc. Servs.,
I. BACKGROUND
The story of this case is one of repeated falsehoods by the state prosecutors and repeated errors by the state courts, each condemning Fox to untold years in prison in violation of the State’s original bargain. While the majority opinion describes the procedural posture of this , case at great length in order to explain why it believes there is nothing it can do for Fox — or for justice — its cold recitation of the facts does not adequately capture the injustice that has occurred. Nor can the majority opinion or. any other obfuscate the plain fact that after Fox carried out her part of the bargain, the State- obdurately and willfully refused to carry out its.
In 1984, Candace Fox struck a plea agreement with California prosecutors. The agreement was not reduced to writing but its terms were clear. Fox would plead guilty to second-degree murder and testify against her co-defendant. In exchange, the State would drop all additional charges against her. Under this plea, the State promised, she would be sentenced to 15 years to life, and would be paroled at the .end of seven and one-half years of imprisonment if she conducted herself properly while incarcerated. Although the State for many years denied ever making Fox any such promise, the transcript of her sentencing hearing reveals the truth, and the state court of appeal ultimately recognized that it did. As the transcript shows, after the sentencing judge announced Fox’s sentence of fifteen years to life, defense counsel objected, and the following exchange occurred:
[Counsel]: [I]f I may, for the record, Your Honor, I believe the People have indicated as part of the plea bargain that [petitioner would] be looking at obtaining probation-^-parole, excuse me, in seven and a half years [¶] Is that correct, [prosecutor]?
[Prosecutor]: That’s correct.
[Trial Court]: All right ... Also, the court will order a transcript of these proceedings to be sent with [petitioner] to the state prison just in an abundance of caution.
A. 1986 Habeas Petitions
In 1986, Fox filed her first habeas petition in the Los Angeles Superior Court seeking to ensure that the State would fulfill its end of the bargain. In it, she explained that, at the time she entered her plea, she understood that “she would be entitled to release after seven and one-half years, provided that she behaved properly in state prison” because of statements made by “her counsel and by the deputy district attorney” at the time of her plea. Further, she explained, she had never been advised that she would be placed on lifetime parole after release from prison. The superior court denied her petition on the same day that it was filed, citing only “page 4 of the plea transcript.”
Immediately thereafter, Fox filed another habeas petition, this time with the California Court of Appeal. Once again, she advised the court that the prosecutor had told her that “she could not serve more than 7-1/2 years of actual incarceration unless she failed to ‘behave herself in state prison” and that “until recently, [she] ha[d] been unaware that her sentence entailed] a potential life-long period of parole.” She did not request withdrawal of her plea. Instead, she told the court that her “sentencing was unlawful,” and that she wished the matter to be “remanded for resentencing.”
The resolution of these petitions should have been simple. At the time, Santobello v. New York,
B. 1989 Habeas Petitions
Three years later, Fox again petitioned the superior court for a writ of habeas corpus, this time with new counsel. In contrast to her earlier petition, Fox’s new counsel asked to have her guilty plea set aside on the ground that there had been newly discovered evidence exonerating her of the murder, and that her prior counsel had ineffectively advised her about a potential duress defense. Shortly thereafter, Fox replaced her counsel, because the woman had “what appeared to [Fox] like a nervous breakdown” when she had began “cracking up and laughing” and “talking to herself’ in the courtroom.
The replacement counsel filed a supplemental brief in support of Fox’s petition in which Fox asked to have her guilty plea set aside on two bases. The first ground for relief was that Fox’s plea was involuntary because she “did not understand that her period of confinement would exceed seven and one-half years with good prison behavior.” Although Fox’s petition termed the plea “involuntary,” the context of her argument shows that she was actually asserting that the State was applying a plea agreement to which she had not agreed and that it had breached its agreement as to the true plea. The plea was involuntary only to the extent that the court deemed it to be the agreement that the State claimed it to be (i.e., no promise of eligibility or entitlement to parole after seven and one-half years had been made). The plea was breached, however, if the terms were what Fox asserted they were and what they actually were: that a promise of entitlement for parole was part of the plea agreement. As the excerpt of the sentencing hearing described, and as the California Court of Appeal later found, under the agreement that Fox actually entered into, her incarceration could not exceed seven and one-half years with good behavior; instead, she would be paroled at that time. See Brown v. Poole,
A hearing was held in July 1989 at which the prosecutor denied that Fox had ever been promised that she could be released on parole in seven and one-half years. Indeed, it was disclosed at the hearing that Fox had been assigned a minimum release date in 1994 — which would require her to spend at least ten years in prison before even being considered for parole, despite the terms of her agreement. The superior court then granted Fox’s petition on an entirely different basis, holding that her plea was involuntary because she had not been advised of the lifetime parole period, and ordered that Fox’s entire plea be set aside. It did so without reaching the question of whether the State had breached the agreement or whether, if a breach occurred, withdrawal or enforcement would be the appropriate remedy. Indeed, it announced its decision without ever asking Fox if she had a preferred remedy for the breach, or attempting to determine whether her request to “withdraw” her plea after she had already served a substantial portion of her sentence was knowingly, intelligently, and voluntarily made. Instead, upon announcing its decision, it immediately set a trial date.
C. Trial, Sentencing, and Appeal
Twice before trial — once two years before the jury was empaneled, and another six months before that time — Fox filed motions asserting that the court should not have withdrawn her plea because, under Santobello, specific performance was a remedy that the court should have considered. (In fact, in Fox’s case, it was the only appropriate remedy.) At the time of her second motion, Fox had served virtually the entirety of the sentence she had been promised would be her maximum, assuming good behavior. In its opposition, the State continued to maintain that Fox was never promised that she would be entitled to parole in seven and one-half years, and that under California law it had never been possible for her even to be eligible for parole in seven and one-half years. The superior court denied both of Fox’s motions without comment and in a form order. On January 28, 1992, a jury convicted her of first degree murder and first degree burglary, charges which the State had previously dropped pursuant to the terms of the plea agreement that it breached. At this time, of course, Fox had served the entirety of the promised seven and one-half year term.
Before sentencing,'Fox once again asked that she be given the benefit of her bargain. As she explained, she had been promised parole in seven and one-half years in exchange for her testimony against her co-defendant and her plea of guilty, but had been denied the benefit of her bargain by the State after she had complied fully with her promise. The due process clause, she argued, required that she be given an appropriate remedy for the breach of the promises made to her, but, she asserted, she did not receive such a remedy. Instead, after serving almost the full seven and one-half years, just months before she was entitled to release, the state court subjected her to a trial on a more serious charge — a charge on which the State had promised it would not prosecute her. That prosecution was in no way just or fair. As she told the court in her brief, “[e]ven if acquitted she had already
Fox appealed and again argued that under Santobello she was constitutionally entitled to a remedy for the breach of her plea agreement, and that “[a]fter she had served in excess of 7 $ years, it was unjust” for the court to allow her only the option of withdrawing her plea; in doing so, she contended, it offered her no remedy; rather it presented her with the fundamentally unfair choice of either accepting a sentence that increased the period of incarceration provided for by her original agreement or going to trial in which case she faced even far greater punishment if convicted. She argued that rather than a coerced withdrawal, she should have been given specific performance as the only appropriate remedy for the State’s breach of the plea agreement.
In response, the State did not deny its promise to Fox, nor did it claim — as it had in the past — that its promise to her was unenforceable under California law. Instead, it admitted for the first time that, pursuant to the plea agreement, Fox was to serve “about 7 ^ years,” but asserted that its promise was now unenforceable because the court had withdrawn Fox’s plea agreement at her request.
In its unpublished 1994 decision, which the State contends is the last reasoned decision and thus the decision that we must examine under habeas law,
D. Post-Trial State Habeas Petitions
Following the denial of her direct appeal, Fox filed yet another habeas petition
Fox again returned to the California Court of Appeal, which remanded for an evidentiary hearing on the issue whether Fox received ineffective assistance of counsel by filing a habeas petition that resulted in her guilty plea being withdrawn. In that hearing, the superior court limited its inquiry to the question whether counsel advised Fox about the risk that she could face a new trial or a longer sentence. It did not examine whether the attorney should have advised Fox about her right to specific performance of her original bargain.
During the two-day hearing, Fox’s former habeas counsel testified that he had asked to withdraw her plea because he believed that the District Attorney would offer a second plea bargain. He further testified that he had declined to seek specific performance because he did not believe that the statements made about the promise of parole during Fox’s sentencing hearing were “legally binding on The Court or the District Attorney.” Accordingly, he believed that asking for withdrawal on the basis that Fox’s plea was involuntary was a stronger argument.
Fox’s testimony revealed that the advice given to her by her habeas counsel was muddled at best. Specifically, she explained that, although she knew her 1989 habeas petition asked to have her plea “withdrawn,” she understood that if that petition were successful, the court would give her the seven and one-half year period of incarceration that she had been promised. She testified that, on the basis of the advice of her counsel, she believed that the court would “adjust some kind of plea bargain” so that she could receive the promised seven and one-half years. Fox explained that she had been informed that by requesting “withdrawal” of her plea, she would enable the court to invalidate the terms of the bargain as the prosecutor wrongfully described them and that the court would then be able to enforce specific performance of the true agreement by allowing her to change her plea to that of a lesser charge, one which, under California law, would allow her to be paroled upon completion of the promised seven and one-half years.
The superior court denied the petition from the bench on June 2, 1999. Ignoring almost all of the facts set forth above, it found that Fox’s habeas attorney was not ineffective because he had advised her that setting aside her plea agreement could result in a new trial that would expose her to a sentence longer than the one she was serving, “up to and including life without the possibility of parole.” Subsequently, Fox once more moved her way through the hierarchy of the California courts. The California Court of Appeal denied her petition without comment, and the California Supreme Court denied it as untimely.
E. The Federal Petition
After two decades of litigation in the California courts, Fox finally turned naively to the federal judiciary. Proceeding pro se, she filed a habeas petition under 28 U.S.C. §2254 on August 13, 2004. The State moved to dismiss the petition as untimely, but the district court held that Fox was entitled to equitable tolling based on the misconduct of her habeas lawyer who had resigned from the practice of law after masterminding what the California Court of Appeal described (in another case) as a habeas corpus “writ mill,” designed to “systematically ... abus[e] the writ process for his own pecuniary gain.” In re White,
Originally, in October 2009, a magistrate judge issued a report and recommendation which concluded that Fox was entitled to relief on her request for specific performance. The magistrate judge reasoned that Fox’s agreement with the State plainly entitled her to be eligible for release on parole after seven and one-half years. Contrary to the opinion of the California Court of Appeal, the magistrate judge held that Fox clearly did not receive the benefit of her bargain. She did not, as the state court had reasoned, “decide[ ] she didn’t like the deal she’d made,” but instead sought relief because the State informed her that she
The State filed objections and the magistrate judge revised his report. In the amended report and recommendation, issued in March 2012, the magistrate judge ruled that Fox had not shown that the state court’s decision was contrary to or an unreasonable application of clearly established Supreme Court law, and therefore could not survive the deferential standard of review established under 28 U.S.C. § 2254(d)(1). As explained infra Part II, such a finding would require that the federal court deny Fox relief only if she could not overcome the equally deferential standard set forth in 28 U.S.C. § 2254(d)(2), which governs unreasonable findings of fact. Inexplicably, however, although he had previously relied on both 28 U.S.C. § 2254(d)(1) and (d)(2) in his original report and recommendation, the magistrate judge did not address whether Fox met the standard with respect to unreasonable findings of fact under 28 U.S.C. § 2254(d)(2). The district court nevertheless adopted the revised report and recommendation, denied Fox’s petition, and issued a certificate of appealability. This appeal timely followed.
II. Standard of Review
The majority carefully avoids deciding whether the strictures of the Anti-terrorism and Effective Death Penalty Act (“AEDPA”) requiring deference to the state court’s decision apply here. That Act bars further review of any claim “adjudicated on the merits” in state court, unless the State’s decision falls within an exception contained in 28 U.S.C. § 2254(d)(1) or (d)(2). Harrington v. Richter,
As the majority correctly states, AED-PA’s limitations apply “to a single state court decision, not to some amalgamation of multiple state court decisions,” and when more than one state court has adjudicated the claim, we analyze only “the last reasoned decision.” Barker v. Fleming,
Here, the California Supreme Court’s 2004 denial of Fox’s petition rested on a procedural ground. The State, however, believes that we should “look through” that decision both because it has waived Fox’s procedural default and because the procedural ground in question was merely a failure to file a timely petition, a ground
I, like the majority, do not believe that we need to resolve the question of which opinion is the last reasoned decision in this case, and I, like the majority, apply de novo review to Fox’s claim. I do so because, even assuming that we must, as the State urges, “look through” the California Supreme Court’s timeliness decision and give deference to the 1994 court of appeal’s resolution of Fox’s claim on the merits, that decision is so unreasonable that it fails even AEDPA’s highly deferential test, and therefore, de novo review applies. See Hurles v. Ryan,
In this case, the California Court of Appeal plainly misapprehended, and indeed, ignored, material facts, and as a result based its decision on factual findings that are entirely unsupported by the record and are for that reason alone wholly unreasonable. It thus falls within the exception set forth in Section 2254(d)(2). See Milke v. Ryan,
Contrary to the state court of appeal’s findings, the record clearly reflected that
Indeed, the state court of appeal did not even mention that Fox sought relief in her 1989 habeas petition on the basis that she was not going to receive parole after seven and one-half years of incarceration as the State had promised. Instead, it wrote that there were only two bases for Fox’s 1989 petition (that’ she had not been fully advised of the consequences of her guilty plea, and that she had been ineffectively advised about her potential duress defense) while ignoring the primary, most substantial and repeatedly asserted basis for Fox’s habeas petition (that she was being forced to remain in prison for at least ten years, in violation of the prosecutor’s promise regarding parole). Without wholly ignoring this primary ground and • the evidence that supported it, the court of appeal could not have concluded that “[fjive years into her sentence (with only two and one-half years to go), Fox decided she didn’t like the deal she’d made.” The record shows exactly the opposite: Fox sought relief not because she did not like the deal she had made, but because the State refused to acknowledge the deal into which it had entered and also contended that it lacked the power to deliver on its part of the bargain.
The state court of appeal also unreasonably found that Fox was granted “the relief she so desperately wanted” — withdrawal of her plea-and a trial at which the State could try to prove the charges against her. Fox’s pretrial motions, which were filed well in advance of the actual trial, make clear that a new trial was not the relief she desired. She tried vigorously to avoid a new trial and sought reinstatement of all parts of the plea bargain that she insisted she had made. This was not a ease in which the defendant gambled a life in prison in the hope of being acquitted and later regretted the outcome. It was one in which the defendant had, from the very beginning, surrendered her right to trial in exchange for a promise of parole after serving seven and one-half years of imprisonment and, for decades thereafter continuously sought to enforce that promise. The state court of appeal, however, did not even discuss the contents of Fox’s pretrial attempts to secure a remedy consistent with her original plea bargain.
The evidence that the California Court of Appeal ignored was vital to Fox’s claim. The entire basis of her appeal was that she was entitled to specific performance of the State’s obligations following her performance of her part of the bargain and that the court had unlawfully withdrawn her plea after the State’s breach without offering her that option. The state court of appeal had before it, “yet apparently ignore[d],” all the evidence that was central to Fox’s claim that the State had breached the plea agreement. Thus, we do not accord AEDPA deference to its decision. See Milke,
III. DisCussion
The enforcement of promises that are made in exchange for defendants’ waivers of their freedom is a matter of sound public policy and profound constitutional importance. Well over ninety percent of criminal convictions are based on plea bargains, and each of those convictions de
This case, which comes before us after decades of litigation, started off with a relatively simple premise that should have had a relatively simple resolution. In exchange for Fox’s agreement to waive her fundamental right to a trial by a jury of her peers and her agreement to testify against her co-defendant, the State promised her that she would be paroled, assuming good behavior, in seven and one-half years. Then, after it received everything it needed from her — her testimony and her freedom — the State breached its promise. It informed her that she would not be considered for parole until she had spent at least ten years in prison, and indeed, denied ever agreeing to anything different. After this breach, Fox had an indisputable right to enforce her plea bargain.
While the majority correctly states that Fox’s counsel did not expressly request specific performance until after her plea had already been withdrawn, in her 1986 petition to the California Court of Appeal, she had contended that her sentencing was unlawful and had requested that the case be remanded for resentencing in accordance with her plea. Further, under Santobello v. New York, state courts have a duty to determine whether due process requires specific performance of the broken plea agreement, regardless of whether the defendant expressly requests only withdrawal.
Had the state court fulfilled its obligation to determine the appropriate remedy for the breach the first time Fox requested relief, it undoubtedly would have concluded, as has every court that has faced the question, that under the circumstances, the only remedy that satisfies the demands of due process is specific performance of the breached plea agreement. See, e.g., Cuero,
The majority apparently believes that, simply because Fox’s plea was withdrawn — by unconstitutional means or otherwise — -there is nothing we can do to fix this injustice. That is incorrect. See Cuero,
A. Fox had a Constitutional Right to Enforce the Terms of her Agreement after the State’s Breach
In Santobello v. New York, the Supreme Court first held that “when a plea rests in any significant degree on a promise or agreement ... such promise must be fulfilled.”
Thus, under Santobello, Fox had a constitutional right to a meaningful remedy for the State’s breach, and the state courts had a duty to ensure that Fox received what she was “reasonably due” — to determine whether, under the circumstances of this case, the interests of justice required specific performance of the bargain or withdrawal of her plea. The state courts declined to do so. There is no indication that, at any point in the decades-long state proceedings, the state courts ever considered what remedy would appropriately rectify the State’s breach or that they ever considered specific performance. By failing to do so, the State denied Fox the remedy to which she was constitutionally entitled: specific performance of her plea agreement.
B. The Only Appropriate Remedy for this Breach was Specific Performance
Had the State inquired into the appropriate remedy for the breach of Fox’s plea agreement, it undoubtedly would have come to the conclusion that the only appropriate remedy in this case was to grant specific performance. Fox had fulfilled her end of the bargain. She testified for several hours against her co-defendant and, by all accounts, comported herself as a model inmate in the years she spent in prison before filing her habeas petitions. Unlike the defendant in Santobello who had not yet been sentenced at the time of the breach, see
The three decades that followed have only served to reinforce the notion that when a defendant has already served a substantial prison term or has already provided the bargained-for cooperation with the government, specific performance is the only remedy for the governmental breach. Indeed, this court held as much in Brown v. Poole,
Even more recently, in Cuero v. Cate, this court held that a defendant who has performed his part of the bargain is entitled to specific performance after a state’s breach even after he has already withdrawn the bargain.
The majority believes that Cuero is distinguishable because of the procedural posture of that case, namely, that Cuero initially argued breach and sought specific performance in state habeas court. That distinction, however, is without a difference. Here, as in Cuero, the state breached its agreement, and here, as in Cuero, the breach resulted in the withdrawal of the plea agreement. In both cases, the withdrawal “exposed” the defendant to the fundamentally unfair risk of a potential life sentence. In both cases, the withdrawal of the plea was meaningless, as it afforded “no remedy.” See id. at 889-90,
In short, in every case to have addressed the question, courts have recognized that, when the State breaches its plea agreement after the defendant has already substantially performed his part of the bargain, withdrawal of the plea is no remedy at all. Accordingly, by failing to give Fox specific performance of her bargain and instead withdrawing her plea, the State denied her the constitutional remedy to which she was entitled.
The majority would apparently distinguish all prior reported cases on the patently erroneous assumption that Fox voluntarily decided in 1989 to abandon the plea deal the State had guaranteed her in order to seek to establish her innocence in
C. The State is not Excused from its Obligation to Provide A Meaningful Remedg by the Coerced Withdrawal of Fox’s Guilty Plea
The majority believes that the State’s withdrawal of Fox’s plea was appropriate because that was the remedy she sought. There are several problems with this conclusion. First, it is directly contrary to Santobello, which held that the remedy must be selected by the state court based on the circumstances of the case, not dictated solely by the defendant’s request. Santobello,
Under Santobello, courts have an obligation to determine independently which remedy comports with due process and fundamental fairness, regardless of the defendant’s initial request.
Of course, as Justice Douglas’s critical concurrence in Santobello suggests, a defendant’s choice of relief should ordinarily be given “considerable” weight in determining which remedy due process requires, but that choice is without force unless it was voluntarily, knowingly, and intelligently made. Here, although Fox asked to “withdraw” the plea, the context makes clear that she wished to “withdraw” only from the terms of the agreement that the State sought to unilaterally enforce against her, not from the plea bargain as she (correctly) understood it. Her petition stated that she “did not understand that her period of confinement would exceed seven and one-half years with good prison behavior.” The truth was, of course, that her confinement could not, under the terms of the actual plea agreement, be longer than seven and one-half years with good behavior. See Brown,
Fox simply had no objective reason to seek to invalidate the actual plea agreement that promised her parole after the agreed-upon period, nor is there any reason to believe that she would have agreed to do so but for the State’s breach of its promise. At no point prior to withdrawal did the superior court ask Fox whether she wished to withdraw her plea and face the possibility of trial or whether she wished to seek specific enforcement. Further, as she testified at the 1999 hearing, she believed her motion to “withdraw” would guarantee her the mutually agreed-upon seven and one-half years by allowing her to receive the opportunity to replead to a lesser offense — one that would permit compliance with California sentencing law while still allowing her the promised limited term of imprisonment. Indeed, shortly after the court withdrew Fox’s plea, she moved for specific performance, making clear that she had only sought to “withdraw” from the plea that the State represented to be the bargain — a plea to which she in fact had never agreed. Thus, it is impossible to conclude, as the majority so facilely does, that Fox voluntarily withdrew her plea. Indeed, Fox’s request to withdraw was coerced by the State’s repudiation of the bargain. If not for the State’s actions, she in all likelihood would not have filed the motion to withdraw, and even if she had, the withdrawal would have been unlawfully coerced or, to put it differ
Finally, the state court cannot be excused from its duty to consider, and ultimately, grant specific performance as a remedy simply because another ground existed for withdrawal separate and apart from the State’s breach regarding its promise of parole after seven and one-half years. The court withdrew Fox’s plea without addressing the State’s breach. It did so on the ground that Fox had not been advised of a different parole term required by state law to be included in her sentence: lifetime parole. State law at the time permitted a defendant who had not been advised of the length of the parole term following his release from prison to withdraw his plea. See In re Carabes,
In my view, the result under the Due Process Clause is clear: when there has been both a breach of the plea agreement and some other, non-constitutional violation, (or even a constitutional one) the state court must consider the violations together in determining the appropriate remedy, or at the least it cannot rule on the remedy for the other violation without also considering the proper remedy for the breach of the plea agreement. Santobello clearly states that a defendant must be provided with a remedy for the State’s breach, and that, in a number of circumstances, withdrawal will not be proper even when the defendant requests it.
Two years after the state superior court revoked Fox’s plea agreement, the California Supreme Court cautioned lower courts against the very sin committed by the superior court when it withdrew Fox’s plea without addressing the State’s breach. The court explained that in “any given case, there may be a violation of both the advisement requirement, or the plea bargain, or both” and that when both types of error are present and the defendant has already begun serving his sentence, the defendant’s agreement should be specifically enforced, rather than withdrawn because “permitting him to withdraw his guilty plea cannot restore the status he enjoyed before sentencing.” People v. Walker,
The superior court had two opportunities to remedy its failure to provide Fox the constitutional remedy to which she was entitled when, post-Wai/cer, Fox filed her pre-trial motions explaining that withdrawal was an inadequate remedy for the breach of her plea. The court failed to take advantage of those opportunities, and instead, without discussing whether the earlier withdrawal was appropriate or constitutional, denied both motions by means of a form order. The court then had a third opportunity when Fox asked for the benefit of her original bargain at sentencing, where she explained that “there is and was no way that allowing her to withdraw her plea” after so many years in prison “was fair or just.” The state court again did not correct its prior errors, and instead, sentenced Fox to life imprisonment without the possibility of parole. These orders also were arbitrary and capricious and furthered the State’s deprivation of her right to a constitutional remedy for the State’s breach of the plea agreement.
D. The Appropriate Remedy is Now to Grant Fox the Relief She Sought Thirty Years Ago
In short, Fox’s plea agreement should never have been withdrawn by the state court. Doing so was contrary to the mandate of Santobello, its progeny and due process (as well as to California law). Further, it allowed the State to breach its agreement with impunity, and instead, forced Fox alone to bear the burden of the State’s constitutional errors. That burden is a heavy one. Even though the State originally agreed that the service of a prison sentence of seven and one-half years prior to release on parole was sufficient for the crime to which she pled, Fox will now
The majority believes that its decision is unavoidable because even if Fox was, at one point, entitled to specific performance, the time for that remedy has long passed. Once the state court withdrew her plea bargain (whether voluntarily or not), the majority argues, there was no longer an agreement for it to enforce. This decision is in conflict with our recent decision in Cuero v. Cate, in which we granted specific performance after a plea had already been withdrawn. Even absent the existence of Cuero, however, I do not believe that the fundamental fairness that due process requires can be so simply disregarded in the guise of adherence to a prior unfair and unconstitutional judicial action. An injustice cannot become just merely through the State’s compounding of its error and the passage of time.
Because the state court withdrew Fox’s plea without considering the remedy of specific performance and because withdrawal of her plea was involuntary, Fox was denied the constitutional remedy required for the State’s breach. Her subsequent efforts to reinstate and enforce that plea agreement were also unconstitutionally denied. The resulting conviction of Fox for a more serious crime on which the State had promised not to prosecute her cannot stand. Accordingly, this court should now do what should have been done three decades ago: enforce the plea agreement upon which Fox and the State mutually agreed. It necessarily follows that we should vacate the conviction on the charge of first degree murder.
Fox, who has served over twenty-five years in excess of the seven and one-half years that she was promised, should be released forthwith. She has already suffered more than enough from the State’s violation of her constitutional rights. I agree that we are incapable of remedying this travesty entirely, because we cannot give Fox back the extra twenty-five years she has spent in prison. I do not agree, however, that we are unable to prevent the further perpetuation of this inexcusable travesty of justice and become parties to the unprecedented violation of Fox’s constitutional rights. I respectfully dissent.
. Although there has been some debate as to whether Fox was promised merely consideration for parole in seven and one-half years or
. Although a copy of the state court of appeal’s denial is not on record, both parties have stipulated that the petition was denied as "unripe” — a highly questionable proposition considering that Fox had been informed that her minimum eligible parole date was set for 1994, which would require her to spend at least ten years in prison before being considered for parole. This strongly indicates that the State had anticipatorily breached the plea agreement. Any state law to the contrary would unduly burden Fox’s attempt to vindicate her constitutional rights, as it would require her to remain in prison longer than her promised sentence, and corftinue to remain in prison, while state courts resolved her claim.
. See, e.g., Ylst v. Nunnemaker,
. Fox, of course, did like the deal she had made. Although the court determined that she did not like the length of the parole term, her "deal” said nothing about the length of the term of parole that would follow her sentence, only that she would be released in the promised seven and one-half years. Fox had no problem with this deal — her problem was that the State continuously denied that she could or would be released in accordance with her deal. See infra pp. 999-1001.
.As this court recently noted in Curiel v. Miller, the California Supreme Court must rule on a "staggering number of habeas petitions each year,” and addresses this otherwise insolvable workload problem "by issuing une-laborated summary denials.” Curiel v. Miller, No. 11-56949, Slip Op. at 7.
. That procedure, of course, could still obtain the same result as specific performance (a seven and one-half year term followed by parole) if Fox had been allowed to replead after the plea had been withdrawn. As described below, this appears to be the result Fox hoped to obtain.
. Although, as the majority reports, Fox was apparently also told that "if [she] went to trial” she could get a sentence of life without the possibility of parole, that statement is of little significance in light of the fact that Fox testified that she was also informed that, if her petition were successful, she would not have to take the case to trial and could, at the worst, choose the option of again pleading to second degree murder. She testified that she had been told that she "could always plead out to second-degree” which would come with a fifteen-years-to-life sentence. Indeed, she testified, her attorney told her that the opportunity to plead out to second-degree would "always” be "on the table.” According to Fox, however, neither the prosecution nor the court ever gave her that opportunity or otherwise complied with the dictates of Santo-bello.
. Richard Dangler, the attorney in question, represented Fox through her third round of state habeas petitions, those that were filed after her trial. According to the district court, Dangler was paid $5,000.00 and it was agreed that he would promptly appeal any denial by the Los Angeles Superior Court, and then, if those petitions were unsuccessful, promptly file a federal petition within AEDPA’s one year statute of limitations. Despite Dangler’s assurances, it took him over 11 months to file a new petition in the state court of appeal, at which point he filed a petition that essentially simply copied the petition he had originally filed in the superior court. Following the court of appeal’s denial, Dangler waited another 27 months to file a petition in the California Supreme Court, and again, filed a petition that simply mirrored the one that the court of appeal rejected. During this time, Fox wrote Dangler numerous letters about the length of time he was taking to file her petitions, and Dangler repeatedly assured her that she had nothing to worry about. After Dangler had resigned from the practice of law, and after the California Supreme Court denied Fox's petition as untimely, Dangler sent Fox a letter informing her that she should file another habeas petition in the California Supreme Court and that his associate, C. Roman Rector would be willing to represent her in connection with that petition at no charge, provided that Rector was retained to file a federal petition for $8,250.00. (Although this opinion refers to the process of going through the California appellate system after the completion of proceedings in the superior court as "appealing” the denial of a petition, the California system consists simply of filing a new petition with the next level of the judicial system. For almost all purposes, California treats the post-conviction petitions filed at the second and third levels as appeals. There is a difference not relevant here, however, in cases in which the order of filing the petitions is different, for example filing the first petition in the state supreme court, which is permissible unddr California law).
. If the California Supreme Court's 2004 decision were the last reasoned decision, of course, Fox would not need to overcome either of the exceptions listed in 28 U.S.C. § 2254(d) because that decision was not a decision "on the merits.” The normal course of action in such case is to allow the petitioner the opportunity to show cause and prejudice for his procedural default, and then, if such a showing is made, to review the claim de novo. Here, because the State has waived any argument that Fox’s relief is procedurally defaulted, Franklin v. Johnson,
. Both the majority and the concurrence apparently agree with the state court of appeal that Fox “got what she asked for” when the state court withdrew her plea. The facts and
. In the alternative, I would also find that the California Court of Appeal decision was contrary to and an unreasonable application of clearly established Supreme Court law because it made no mention of, or reference to, California contract law in determining whether the State had breached its promise. See Ricketts v. Adamson,
. Santobello was decided 4-3, with Justice Douglas’s concurrence serving as the critical fourth vote. (From September 1971 until roughly one month after Santobello was decided in December 1971, the Supreme Court functioned with only seven justices. This was not a result of any Senate obstructionism, however. Rather, in September 1971 Justice Black resigned, and six days later, Justice Harlan died). The dissenting justices did not disagree with the Court’s central holding that the constitution guarantees a remedy for broken plea bargains. Instead, they believed that,
. This is also the approach that has been taken by state courts that have followed San-tabello's mandate and inquired as to whether specific performance is an appropriate remedy. See, e.g., Shanklin v. Commonwealth,
. Indeed, the difference between the procedural posture in Cuero and this case is not so great as the majority suggests. Both requested specific performance only after their plea had already been withdrawn. In Cuero, the defendant pleaded guilty to the charges in the amended complaint subsequent- to the withdrawal of his original plea, but before he requested specific performance. See id. at 883, 2016 WL 3563660at *2 (“[T]he Superior Court allowed Cuero to withdraw his guilty plea and enter a new plea agreement!)]”); see also Cuero v. Cate,
. This requirement serves a practical purpose. That withdrawal of the plea is, in cases like Fox’s, not a constitutionally valid remedy is now established. Thus, a defendant who requests withdrawal may,1 in fact, be waiving a right to which he is constitutionally entitled. Judges, who understand the consequences, legal and practical, of particular
. It may, of course, be the case that a defendant truly wishes to withdraw his plea, even despite a breach. In such circumstances, a defendant's knowing, voluntary, and intelligent waiver of his constitutional right to specific performance is something that the state courts should consider when devising an appropriate remedy. See Buckley,
. Walker was subsequently overruled to the extent that it had held that failure to advise a defendant of restitution where the plea bar- . gain was silent as to restitution was not a breach of the agreement, but merely a failure to advise. See People v. Villalobos,
. No prejudice to the court or the State could even arguably have been used to justify the denial of Fox’s pre-trial (or even post-trial) motions existed.