Michael Cuero v. Matthew Cate

in order to leave rely tinued to on others CUERO, Michael Daniel Petitioner- house, including to run errands or

her Appellant, appointments. If she had to attend doctor’s somewhere, she would ask a take bus go Although her. she did friend with CATE, Respondent-Appellee. Matthew time, experi- alone one

take the bus yet weeklong ence resulted another No. 12-55911 ha- flare-up symptoms after she felt stop. aspect rassed at the bus This Appeals, United States Court of short, functioning, Attmore’s social did Ninth Circuit. of a examples

not “in constitute fact Argued August and Submitted Garrison, development.” broader 759 F.3d Pasadena, California (concluding at 1018 there was no sustained symp- improvement medical where “some Filed June ..., symptoms toms came and went some ...,

persisted nearly period the whole symptoms appear

still other to have re- impairment”).

mained a constant source of erroneously conclude the ALJ fo-

We only temporary periods

cused on and iso- aspects improvement

lated of Attmore’s representative

that were not of the con-

tinuing severity of symptoms. her Because improvement

Attmore’s was not sustained considerably scope,

and was limited in we support

hold substantial evidence does not finding improvement.

the ALJ’s of medical

CONCLUSION properly compared

The ALJ the medical

evidence, determining but erred in medically improved

Attmore had as of

March 2009. We therefore reverse the

judgment and remand with instructions to

the district court to remand to the ALJ

the calculation and award of benefits.

REVERSED AND REMANDED. County

Superior in and for to a written Diego, pursuant San voluntarily freely plead- agreement, he causing felony to one count of guilty ed the influ- bodily injury driving while under pos- unlawful felony and one count of ence admitted a session of a firearm. Cuero also and four single prior strike conviction1 exchange In for Cuero’s prison priors.2 numerous of his constitutional and waiver & Bur- (argued), Warren Devin Burstein dismissed rights, prosecution other California, stein, for Petition- Diego, San count, thereby guaranteeing misdemeanor er-Appellant. years, 14 4 maximum.sentence of Cuero a (argued) and Matthew Anthony Da Silva as prison years parole, in and 4 months General; Mulford, Attorneys Julie Deputy agree- explained plea both in the written Garland, Attorney Assistant Senior L. ¶ 7a, ment, A, by Judge Appendix and General; Engler, A. Chief Assistant Gerald Er- colloquy. Judge during plea Ervin Harris, General; Attor- Kamala Attorney accepted plea and admis-. vin then Cuero’s California; of the Office ney General 11, sions, January sentencing and set for California; General, Diego, San Attorney day, Judge signed Ervin 2006. That same Respondent-Appellee. Order, 3, Appendix A at Finding is convicted stating that “the defendant F. Before: DIARMUID thereby.” O’SCANNLAIN, BARRY G.

SILVERMAN, McLANE and KIM convicted; “nothing re- Cuero stood WARDLAW, Judges. Circuit give judgment but to and deter- main[ed] ,mine Alabama, v. punishment.” Boykin Judge by

Dissent O’SCANNLAIN 238, 242, 1709, 23 395 U.S. 89 S.Ct. (1969). clearly 274 estab- L.Ed.2d Under OPINION law, agree- plea lished Court WARDLAW, Judge: Circuit Mabry v. government. ment bound the See Johnson, 504, 507-08, 8, 2005, 104 S.Ct. Michael Daniel 467 U.S. On December (1984) (a 2543, defendant’s the Hon- 81 L.Ed.2d 437 open stood in court before Cuero Constitution,” Ervin, Judge guilty plea “implicates of the orable Charles W. convictions, qualifying had two or more current three strikes law con- 1. "California’s statutory virtually identical sists of two indeterminate term of life law mandated "an 'designed prison to increase schemes imprisonment.” (quoting Cal. Penal Code Id. ” Ewing California, repeat v. terms of felons.’ 1170.12(c)(2)(A)). 667(e)(2)(A), general- §§ See 11, 15, 1179, 155 L.Ed.2d 538 U.S. 123 S.Ct. al., ly 3 B.E. Witkin et California Criminal (2003) Superior (quoting People v. Court 108 (4th 2012). §§ Law 428-429 ed. Romero, Diego Cty. ex rel. 13 Cal.4th San 628, 497, 789, Cal.Rptr.2d P.2d 630 53 917 667.5(b) requires a Code 2. California Penal 2005, (1996)). charged When Cuero was in “impose one-year a term for each court to required that a defen- the three strikes law county jail prior separate prison term or i.e., conviction, single qualifying dant with a by a California term” served defendant. strike, term single "be sentenced to 'twice the prior to these terms of incarcera- courts refer provided punishment for the otherwise as ” "prison priors.” as Cuero admitted serv- tion felony Id. at 123 current conviction.’ ing prison priors, resulting addi- in the four (quoting Cal. Penal Code S.Ct. 1179 1170.12(c)(1)). 667(e)(1), years sentence. tion of four consecutive to his §§ If the defendant

833 aíone”); standing preme authority by “plea bargain failing recog- not the Court York, 257, 262, 404 v. New U.S. nize that the “breach undoubtedly [was] Santobello (1971) 495, 30 L.Ed.2d 427 violation of the rights.” defendant’s Puck- (“[W]hen any significant rests in States, 129, 136, ett United 556 U.S. of the degree promise agreement on a or (2009) S.Ct. 173 L.Ed.2d 266 (citing prosecutor, part so that it can be said to be 495). Santobello, at U.S. S.Ct. consideration, or such of the inducement Superior That the Court allowed Cuero to fulfilled.”); Boykin, promise must be guilty plea withdraw his and enter a new (“[A] 242, 244, 89 S.Ct. 1709 U.S. plea agreement calling for an indetermi- an admission of con guilty is more than years nate to life sentence no was reme- conviction.”). case, duct; it is a In Cuero’s here; dy Cuero lost benefit of his government agree bound its was original bargain. punishment in court that could open ment recog- Because the state court neither years, greater be no than months applied clearly nized nor established Su- Adamson, prison. See Ricketts v. 483 U.S. preme authority, acted con- 5 n. 97 L.Ed.2d 1 authority, travention of that we reverse (1987) (“[T]he construction of [a] judgment denying the district court obligations and the concomitant petition, Cuero’s habeas and we remand are, flowing therefrom within broad with instructions to issue the writ of habe- reasonableness, of matters of state bounds corpus. as law.”); Terhune, Buckley see also v. 441 (9th 2006) (en banc) 688, F.3d 694 Cir. I. Jurisdiction Standard (“Under York, Santobello v. New 404 U.S. of Review4 261-62, 495, 257, 92 S.Ct. 30 L.Ed.2d 427 jurisdiction pursuant We have to 28 (1971), a criminal defendant has a due §§ U.S.C. 1291 2253. We review de process right to enforce the terms of his novo a district court's denial of a habeas plea agreement.”). 768, petition. Ryan, Hurles v. 752 F.3d 777 Improbably, day before the sched- (9th 2014). Because his Cir. Cuero filed sentencing, prosecutor uled the state 24, petition April federal habeas after complaint moved to amend the criminal 1996, the Anti-Terrorism and Effective conviction, allege prior an additional strike (“AEDPA”) Penalty governs Death Act which, allowed, if would result in an inde- our review. Id. years terminate 64 to life sentence under relitigation any AEDPA of claim bars California’s three strikes law.3 Even more court, adjudicated on the merits in state Superior improbably, different Court unless the state court’s decision satisfies judge Judge permitted than Ervin in exceptions contained 28 U.S.C. only prosecution amendment. Not did the 2254(d)(1) (2). §§ Harrington or v. Richt- plea agreement by seeking breach the er, 86, 98, complaint amend the after the deal was U.S. (2011).

sealed, judgе exceptions L.Ed.2d 624 Those au- Superior Court unrea- sonably applied clearly grant established Su- thorize a of habeas relief where the Although alleged properly 3. two addition- 4. exhausted on direct and col- the state also Cuero prosecutor lateral review his claims that the felony” priors, al "serious it was the addition plea agreement breached the in violation of exposed Cuero to an second strike process rights he his due and that received indeterminate life sentence. We not ineffective assistance of counsel. do reach the latter claim. (1) Hubbard, (quoting “con- at 996 v. state-court decision was relevant Shackleford (9th 2000)). to, ap- 1079 n. Cir. trary or involved an unreasonable 234 F.3d of, clearly Federal state-court decision ex- plication established reasoned Where law, by Supreme ists, hypotheti- as determined Court” we do not “evaluate all the (2) an unreasonable determi- supported or “based on cal reasons that could have Adams, light in the evidence Cannedy of the facts v. high nation court’s decision.” (9th proceeding.” Cir.), court presented the State 706 F.3d amended on (2). 2254(d)(1), (9th §§ 28 U.S.C. reh’g by 733 F.3d 794 Cir. denial of (“Richter 2013); also id. at 1159 does see decision is con state-court “[A] change practice ’looking our ’if Federal law the state court trary to summary denials to the last rea- through’ opposite to that arrives at a conclusion those denials are soned decision—whether Supreme] Court on a th[e reached discretionary or on the merits denials law,’ or ’the state court con question (footnote omitted)); Medley v. review.” materially fronts facts that are indistin (9th Runnels, 506 F.3d 862-63 Cir. Supreme a relevant Court guishable from 2007) (en banc) (Judge writing Callahan opposite at a result precedent and arrives ” Here, majority). for the we evaluate the Murray Supreme v. Court].’ to [the Diego Superior decision to San Court’s (9th 2014) Schriro, 745 F.3d Cir. grant motion to amend prosecution’s (alterations original) (quoting Williams entry of complaint following Cuero’s 362, 405, Taylor, 529 U.S. original guilty plea his and his conviction (2000)). L.Ed.2d 389 “A state- plea.5 based on that applica court decision is an ’unreasonable if ’the precedent tion’ of II. Discussion governing court identifies the correct legal Supreme] rule from Court’s th[e binding, judicially A. Cuero entered a unreasonably applies it to the cases but approved plea agreement and stood particular prisoner’s facts of the state convicted. case,’ or ’the state court either unreason clearly Under established Su legal principle a from ably [Su extends law, stood convicted preme Court Cuero to a context preme precedent new Court] plea agreement binding and his became unreasonably apply it should not or

where judge Superior the moment the first principle that to a new refuses to extend guilty “A of accepted guilty plea. plea his ” (alter Id. apply.’ context where it should is than a which admits more confession Williams, original) (quoting in 529 ations acts; that did various it is accused 1495). 407,120 U.S. at S.Ct. Boykin, a at itself conviction.” 395 U.S. 242, plea a “[w]hen the last reasoned deci 89 S.Ct. 1709. And

We review any significant degree prom on a sion of the state courts. “When a state rests prosecutor, for its ise or of the so that explain court does not the reason decision, through’ part to the last it can be said to be of the inducement we ’look consideration, provides promise a rea or such must be state-court decision 262, Santobello, of review.” Id. 404 U.S. at 92 explanation capable soned fulfilled.” (1967). Appeal appeal, appointed counsel The California Court of af- 5. On direct Cuero's Wende, pursuant People v. 25 filed a brief to firmed Cuero's conviction and sentence in an 436, 839, Cal.Rptr. Cal.3d 158 600 P.2d 1071 finding unpublished, opinion, "no unreasoned (1979) (en banc), California, v. and Anders reasonably arguable apрellate issue.” L.Ed.2d 493 386 U.S. 18

885 added); initialing Peter the maximum (emphasis 495 see also sentence line on 5.Ct. Westin, & David A Constitutional Westen December 1987. At point Id. some be- Broken Plea Bar Law Remedies change plea hearing January fore the of for (1978) L. Rev. gains, 60 Calif. 4, 1988, prosecutor, the state on his own as (citing language quoted above Buckley’s knowledge, and without added a Santobello). A “undisputed holding” of de paragraph disposition ‍​​​‌​‌​‌‌‌​​​‌​‌​‌​‌​​‌​‌‌​​‌‌‌​​​​‌​​‌​​‌​​​​‌​‍handwritten to the “implicates thus guilty fendant’s stating statement that the sentence would Constitution,” transforming bar a years be “maximum term 15 to life.” gain executory agreement” from a “mere case, Id. at 691-92. Just as in Cuero’s binding Mabry, a contract. at into U.S. during guilty plea colloquy pursuant words, 507-08, 104 S.Ct. 2543.6In other plea bargain, court state told Buck- the state guilty plea seals deal between ley that he could be sentenced to state defendant, and the and vests the defendant prison for a possible “maximum term of process right with “a due to enforce the years.” Following Id. at 692. fifteen plea agreement.” Buckley, terms his trial of his codefendants in which Buckley Santobello, (citing F.3d 404 U.S. at “complied with negotiated the terms of the 261-62, 495); see also Doe v. disposition,” according prose- to the state (9th 2011); Harris, 640 F.3d Cir. cutor, Buckley the court sentenced to a (9th Poole, v. 337 F.3d Brown prison years term of 15 to life. Id. at 693. 2003). Cir. And, case, again, just as in Cuero’s the last Terhune, court, Buckley sitting In our reasoned state court decision failed to “in- banc, grant en affirmed a of habeas relief terpret Buckley’s plea agreement accord- 2254(d)(1) pursuant to 28 U.S.C. ing to contract California law.” Id. at 691. specific ordered enforcement of the terms grant We affirmed the district court’s plea agreement. F.3d at 691. habeas relief because the state court’s fail- There, prosecutor offered “contrary clearly ure was established bargain: Buckley provide cooperat- would forth in Supreme Court law as set Santo- ing testimony against his codefendants ... bello v. New York and Ricketts v. prosecutor return which the would dis- 2254(d)(l)’s Adamson,” satisfying § “con- robbery burglary charges miss his trary exception. to” Id. degree charge reduce the first murder against degree. him to second Id. Attached prosecutor the state While here did felony disposition

to the offer was a state- underhandedly Buckley’s, not act as the so stated, “Consequences ment that under of performed result same obtained —Cuero Plea,” Buckley the that could be sentenced only part bargain his of the to have the possible years.” to a term “maximum 15of Buckley signed plea agreement, renege originally Id. the on its. The state 06, Although Mabry opted 6. clarified the constitutional 104 S.Ct. 2543. The defendant then and, mistrial, significance plea agree- following plead- a of a consummated to stand trial ment, concerned, entirely guilty ed on Id. at insofar as Cuero’s case is it different terms. out, nothing points Unsurprisingly, did more. As the dissent 104 S.Ct. 2543. the Ma- Mabry "prosecutor’s bry prosecutor’s involved a withdrawn court refused to enforce the of- (empha- original, 467 U.S. at 104 S.Ct. 2543 withdrawn offer—the defendant’s fer." added). by Mabry, prosecution guilty plea induced the sis In the had "was in no sense offer,” sentencing prosecutor’s offered the defendant more lenient withdrawn id. at and, "executory agreement” exchange guilty plea in S.Ct. and that terms for his binding through “ensuing attempted accept made an when the defendant to the was not offer, government guilty plea,” the withdrew it. Id. at 505- id. at 104 S.Ct. 2543. Trocha, prosecutor, and a The state Kristian with two felonies charged Cuero Cuero, counsel, Alberto Ta- the com- and Cuero’s It later amended misdemeanor. mayo, Judge Ervin and ex- strike convic- stood before single prior to add a plaint Next, their mutual intent to “settle this priors. par- pressed the prison tion and four charge today.” case The court received the plea agreement into a written ties entered i.e., complaint, Ap- the amended state induced to thrоugh which the Cuero sheet — A.1, majority opin- to rights pendix attached the constitutional and other cede his asked counsel to what Cuero exchange for the state’s ion —and guilty plead and counsel, pleading. refer- charge, the would be Cuero’s drop misdemeanor to promise sheet, charge the that ring a “maximum to stated Cuero Cuero guaranteeing thereby years, pleading 4 would be to without exposure “the sheet [sentencing] Judge the Count 3 Ervin prison, years parole misdemeanor.” in state months reiterated, 8, 2005, plead guilty to $10,000 going fíne.” On “He’s December and a everything charging on the document with signed plea agreement, the parties the judge next exception of the dissent’s the of Count 3.” The page is on three which Buckley, A, which, that “It is a sentence for the as in indicated Appendix and Court, meaning people,” of the Plea” set no deals with the “Consequences under the plea agreement maximum that the was as to state-guaranteed forth Cuero’s day, charge specific and not to the sentence.7 exposure. That same sentencing prosecutor the and defense counsel change plea hearing. a Both Judge Ervin held charge plea bargains Federal Rule of Criminal Procedure types of exist: 7. Two Charge 11(c)(1) bargains. bar- bargains and sentence also reflects the distinction between a arrangement whereby gains of an "consist[ ] charge bargain bargain, and a sentence agree prosecutor that the the defendant prescribes procedures for each: plead guilty permitted to should be defendant plea agreement may specify that an [T]he charge supported a less serious than is attorney government will: for al., Wayne R. LaFave et the evidence.” (A) dismiss, bring, or will move to other 21.1(a) (4th 2015). ed. Procedure Criminal charges; agreement bargains an "involve[] Sentence recommend, (B) agree oppose or not to nose,’ wherеby pleads the defendant 'on particular request, sen- defendant’s that is, exchange original charge, to the sentencing range appropriate or tence or is promise prosecutor kind of from some particular provision that a of the Sentenc- Id.) imposed.” concerning the sentence to be Guidelines, statement, ing policy or or sen- Miller, 722 F.2d see also United States (such tencing apply factor does or does not (9th 1983) (explaining charge Cir. request does not bind a recommendation or upon dropping bargains "predicated are court); or counts,” bargains whereas sentence are (C) agree specific that a sentence or sen- [prosecutor's] "predicated upon either tencing range appropriate disposition is op- recommendation of or not to case, particular provision or that a ..., upon pose particular sentence or Guidelines, Sentencing policy sentence”). or state- guarantee particular of a "Sen- ment, sentencing or factor does or does not bargaining carries with it a somewhat tence (such greater charge bargaining. apply request risk than When a a recommendation or bargains for a to a lesser of- accepts defendant binds the court once the court fense, bargain he receives his the instant he plea agreement). guilty plea, pleads enters his but when he ll(c)(l)(A)-(C). Fed. R. Crim. P. prom- guilty exchange prosecutor's in for the Thus, agreements there were about Cue- no certain sentence there remains ise to seek a sentence, by Appendix A to ro’s as indicated judge possibility some that ... the trial will rather, dissent; agreed the because the state prosecutor’s follow the recommenda- drop charge, sen- to the misdemeanor Cuero’s LaFave, 21.1(a). supra, tions.” This case years was limited to 14 and 4 months. tence only charge bargaining. invоlves count, placed pie’s assented.8 Cuero was then under motion as to the misdemeanor by Judge you and Ervin “Did oath asked stated, which is 3?” Count Mr. Trocha agreement that I plea hear the described?” light “Dismiss in plea.” of the The court Following response, affirmative Cuero’s granted then light the state’s motion “in asked, your the court “Is it full and com- plea,” the accepted “the plea defendant’s plete understanding to settle this case to- admissions,” and and concluded “the day?” The court went on to review the defendant is convicted thereby.” Nothing A, forms, Appendix the dissent’s with Cue- required more was to consummate Cuero’s ro, asking again Cuero to inform him that plea agreement; accepted it “was and final accept agreement he to the to “wish[ed] ... at judge the moment that the made case, form,” this written on the blue and to requisite findings the factual accepted and name,” “sign[ed] confirm Cuero his Brown, plea.” the 337 F.3d at 1159. And boxes,” his initials in “place[d] these prosecution agree- was bound print Again, his on it.” “put thumb follow- terms, ment’s which it acknowledged by ing responses, affirmative Cuero’s immediately moving to dismiss the misde- stated, plea court “In addition to the charge.9 meanor A agreement, [Appendix the document to forth dissent] sets and describes con- prosecution B. The breached the court- rights you enjoy.” stitutional Ap- See approved plea agreement by attempt- A pendix at 1. The court next informed to ing complaint. amend the years, prison Cuero that months Although the prosecution initially punishment was the “maximum could [he] promise honored its to dismiss the misde receive,” pleaded guilty and Cuero to the charge, meanor plea it then breached the single two felonies and admitted his strike agreement by moving to amend the com prison priors. The accepted and four court plaint charge prior con plea. The court then turned to the Cuero’s assault Trocha, asked, prosecutor, Mr. “Peo- viction as a The Superior second strike. misleadingly (citing 8. The dissent mistakes the "no is waived United States v. Gamboa- Cardenas, people” language (9th 2007))). deals with the to mean that 508 F.3d Cir. and, plea agreement, ironically, there was no Throughout briefing, its the state insists that up setting the document holds forth the California law allowed it to amend the com- A, agreement, Appendix support its view. plaint, plea agreement even after the was By entered and Cuero was convicted. con- Absurdly, very 9. the dissent attaches the docu- trast, argued throughout opening Cuero his ment that the court and both state and de- original plea brief that the state breached his fense counsel identified as the written agreement dispute the state did not —and purported proof as that there was original plea agreement's anywhere existence agreement. analysis no The dissent’s reads answering contrary, in its To the brief. caption pipe” like the "This is not below acknowledged agreement's existence Magritte's painting pipe. famous of a Even and framed the issue to be resolved as mystifying, disregards more dissent complaint amendment of the after "[w]hether plea colloquy, transcript proceed- entire pleaded guilty plea agree- Cuero violated the ings, plea agreement and the written itself to right process.” ment and Cuero’s to due In- reach this convenient conclusion. The dissent deed, the state’s brief Cuero’s “ini- contrasted stands alone in its erroneous conclusion—not plea agreement” tial with his "second” or disputed even the state the existence of the plea agreement.” “new It no was therefore plea agreement, argument, until oral and it panel greeted wonder that members of our argument by failing waived that it to raise Lomeli, argument answering the state’s that there was no brief. Clem v. 566 F.3d (9th 2009) agreement, (holding made for the first time at oral Cir. that an argument answering argument, incredulity. not addressed in an brief with 888 3, Adamson, at n. 107 S.Ct. 483 U.S. 6 clearly established contrary to acted 2680).10 by permitting law

Supreme Court refusing to enforce amendment and law, plea “[a] California Under original plea agreement. essence, is, contract be a agreement to prosecutor the defendant and tween plea construction of [a] “[T]he to be bound.” the court consents which obligations concomitant and the agreement 921, 80 Cal. Segura, 44 Cal.4th People v. are, within broad therefrom flowing (2008) 649, 715, 656 188 P.3d Rptr.3d reasonableness, matters of state of bounds Ames, Cal.App.3d People v. 213 (quoting 3, 107 Adamson, at 5 n. 483 U.S. law.” (1989)). Thus, 911, 1214, Cal.Rptr. 913 261 Terhune, 2680; Buckley also S.Ct. see ... is in negotiated plea agreement “[a] (9th 2005) 1149, 1161-62 Cir. F.3d 397 according general to contract terpreted (“At (Bea, J., time of the dissenting) Shelton, People v. 37 Cal.4th principles.” clearly estab proceeding, state habeas 354, 290, 759, 125 P.3d 294 Cal.Rptr.3d 37 law, by the as determined lished Federal (2006). law, contract “[a] Under California Court, interpretation made Supreme interpreted give as to effect to must be so agreement a a plea of and construction it parties intention of the as the mutual Adamson, (citing 483 of state law.” matter contracting.” Cal. existed at the time 2680)), 3, majority 107 S.Ct. U.S. at 5 n. § A “clear and 1636. contract’s Civ. Code (9th 2006); banc, 441 688 Cir. rev’d en F.3d governs interpreta its explicit” language 137, Puckett, 129 S.Ct. 556 U.S. at see also Moreover, “[although a tion. Id. 1638. (“[P]lea essentially con bargains are 1423 does not divest the court plea agreement tracts.”). AEDPA, ... must we “Under discretion, sentencing ’a of its inherent decision [state court] consider whether the bargain accepted has is judge who proper application is consistent with within the impose to a sentence bound interpreting contract law in ” bargain.’ Segura, 80 Cal. limits of that not, was an ’un agreement; if the decision 715, (quoting 188 P.3d at 656 Rptr.3d clearly estab application reasonable 913). Ames, Cal.Rptr. Woodford, 446 Davis v. lished federal law.” (9th 2006) of Cuero’s 957, (citing, inter The terms Cir. F.3d 3, promised alia, Adamson, explicit”: Cuero at 5 n. 107 were “clear 483 U.S. felonies, 2680). prior plead guilty to two Buckley, In we noted that as S.Ct. strike, exchange, summarily prison priors; and four the state court when the misdemean- promised drop the state Buckley’s petition, habeas the obli denied By seeking to amend the charge. accord or plea agreements to construe gation complaint, prosecution in the clearly charges ing to state contract law “had been bargain: a the benefit of his for more than a denied Cuero established federal law years and 4 maximum sentence of (quoting at 694-95 decade.” 441 F.3d ap- each reversed an intermediate argues Buckley’s reason- Swarthout The dissent 10. pellate perceived errors of point decision based on ing to the of irreconcil- was undermined federal, state, in the areas of intervening rather than law ability by Supreme Court’s Corcoran, parole, respectively. statutory aggravation U.S. opinions in Wilson v. where, (2010) They speak as (per do not to the situation L.Ed.2d 276 131 S.Ct. here, Cooke, curiam), clearly Court has held U.S. and Swarthout v. (2011) process right is the federal constitutional due 178 L.Ed.2d 732 principles curiam), reference to freeing three-judge panel to itself defined (per our (citing Buckley, Buckley 441 F.3d at 695 entirely disregard deci- state law. the en banc Adamson, 2680). 483 U.S. at n. is incorrect. Wilson and sion. The dissent 889 And, time, notice, a months. as result of the amend- without renders promise the ment, the im- Superior ultimately illusory unenforceable, Court and at least so long posed an indeterminate life sentence well purported as the contract remains wholly beyond plea agreement.11 the limits of the executory.”). This outcome is inconsistent law, with California contract prefers which Moreover, agreement the said “interpretation an gives which effect” to a nothing altering about the foundational as contract over one that wоuld render it sumption on which the bargain was § void. Cal. Civ. Code 3541.12 namely, the charges alleged set of struck — in Buckley, As where we noted that the in complaint. the criminal People See v. state court’s denying decision habeas nei Walker, 1013, 902, 54 1 Cal.Rptr.2d Cal.3d ther mentioned state contract law nor re (1991) 861, 819 P.2d 867 overruled on other ferred to plea agreement, the terms of the grounds Villalobos, by People v. 54 Cal.4th nothing in the Superior second 177, Court Cal.Rptr.3d 141 277 P.3d 179 judge’s decision (2012) (“When permitting the state pros guilty a plea is entered in ecutor’s amendment here suggests that it exchange specified for benefits such as the understood it dealing was with a binding dismissal of other counts agreed or an plea agreement, let alone that it maximum was con punishment, parties, both in stitutionally state, obligated to construe cluding by must abide the terms agreement in agreement.”). of the accordance with state con implied Such an term tract Buckley, law. See 441 agreement illusory would render F.3d at 696. by Tellingly, providing Superior the state permitted unfettered license to Court terminate it. the amendment Reyn See Sateriale v. R.J. reliance on two state (9th Co., (Alvara olds Tobacco People Superior 697 F.3d 791 cases: v. 2012) (“[A]n do), Cir. Cal.App.3d enforceable termination 207 Cal.Rptr. gives (1989), clause that a promisor Jackson, an People unrestrict and v. 48 Cal. (Ct. power ed to any terminate a contract at Rptr.2d 838 App.), granted review and law, argues 11. The ap- that its conduct prosecutor may was Under California “a propriate plea bargain because California Penal Code any withdraw from a at time to, § among 1192.5 allows a state court pleads guilty other or otherwise before defendant things, approval Witkin, plea] "withdraw its a detrimentally bargain.” [of relies on that light added); of further consideration of the mat- supra § (emphasis see also happened Rhoden, ter.” But that is not what here. People Cal.App.4th Rather, prosecution sought renege 512A, Cal.App.4th Cal.Rptr.2d 824-25 court-approved promise its (1999), to Cuero. The re- (Nov. reh’g as on denial modified greater sult: Cuero received a sentence far 1999). guilty Once a defendant a enters specified court-approved plea than that in the plea pursuant plea agreement, ato the state is agreement. actually prohibits Section 1192.5 by agreement any attempt by bound place what took here. That section disallows through the state to a motion to withdraw — imposition punishment of "a more severe complaint pursuant § amend the 969.5 or specified plea." than that in the Simply put, otherwise—constitutes a breach. provides § discretionary 969.5 vehicle argues 12. The state post-plea complaint that our construction of amendment of a does plea agreement prosecutor is foreclosed California not mean that the can amend the 969.5, § permits complaint Penal Code approved plea which amend- after the court has complaint pleads agreement signed ment of after a defendant an order of conviction. event, guilty complaint charge any if the charge prior "does not all In the state did "all prior felonies of which the defendant has felonies of which been convict- [Cuero] ha[d] original complaint been convicted.” But 969.5 simply is irrelevant to ed” in the did —it interpretation court-approved plea charge felony of a Cuero’s assault conviction principles. under state contract as a strike. specific per order 281, by failing to eral law Cal.Rptr.2d 52 opinion superseded, A 1996). plea agreement. (Cal. formance of Cuero’s Although both 914 P.2d 831 a remedy a for supply must state court permitting the propriety address cases comports that plea agreement a breached after defen- complaint a amendment of Puckett, 556 law. Sеe with state contract neither address- plea, guilty a dant enters Adamson, 1423; 137, 483 at after U.S. amendment of such propriety es the 2680; Davis, 3, 446 at 5 n. induced U.S. guilty plea a enters a defendant law, the 962. Under California F.3d at pursuant by prosecutorial promise i.e., a — harm “repair the remedy for breach must ap- it has been plea bargain a to —and Toscano, Jackson, People by caused the breach.” 48 See by the court.13 proved Cal.Rptr.3d 20 (“[T]he Cal.App.4th 124 court took Jack- Cal.Rptr.2d at 840 “ (2004). is [alleged] the breach 927 ’When complaint.”); of the plea to the face son’s comply to with by prosecutor the a refusal Alvarado, at 255 Cal. Cal.App.3d 207 would specific enforcement transcript agreement, of the the the Rptr. (noting 46 prosecu directing the consist of an order any plea colloquy “does not indicate plea grant bargain’ and will be words, tor to fulfill the Alvara- In neither bargain”). other possibility there is a substantial the scenario ed where do nor Jackson discusses completely specific performance will here, court-approved the present where by prosecutor’s harm caused the repair the to writ- pursuant was entered guilty plea N., Timothy 216 Cal. Indeed, In re neither case breach.” plea agreement. ten (2013) 78, 88 Cal.Rptr.3d App.4th hint that the court much as a contains so (alteration Thus, People v. original) (quoting in contract law. applying was California 1, 13, Kaanehe, Cal.Rptr. agree- 19 Cal.3d Cuero’s by failing interpret to (1977)). Buckley, contract P.2d 1028 Under consistently California ment with follow, unreasonably ap- in a situation law, are bound Superior the which we to Court by here, already the clearly established the state has federal law like that where plied thirty nearly bargained it for—a the benefit Supreme Court Adamson received specific years ago. guilty and conviction— remedy, unless the is the performance best guilty his Allowing Cuero to withdraw C. becomes, defendant, it whose choice remedy at all. plea was no the instead to rescind “elect[s] Buck from there.”14 un and take his chances Court also The Superior 11. ley, fed- F.3d 699 n. clearly established reasonably applied LaFave, 21.2(e) ("When amend, supra, at granting motion to In the state's 13. by prosecutor was a failure that Cuero’s breach Superior reasoned Court fulfillable, carry promise which was out a preju- rights be] [would "substantial request spe certainly then potential defendant’s by [his] mere fact that diced performance be honored. ... cific should punishment may been increased due to have [Tjhere prosecutor why a who is no reason amendment,” would "be that Cuero plea bargain keep fulfillable has failed to his as he would have in the same situation to force the defen promise should be allowed plea.” entry The court prior to of the been thus, plea and into a of the dant withdrawal language almost (inapposite) borrowed this presumably, permanent breach of the bar and Alvarado. See from Jackson verbatim omitted); (footnotes v. Tourtel gain.”) State Jackson, (relying on Cal.Rptr.2d at 844 lotte, 579, 564 P.2d 88 Wash.2d Alvarado). banc) ("If (1977) (en rely cannot a defendant context, accepted in upon agreement made and performance an specific is this In 14. court, criminal open of the entire integrity the fairness necessary and fair- to maintain See, question. justice system would be thrown into system. e.g., justice ness of the criminal Moreover, permitted neging that the state court promise that induced Cue- “repair to withdraw his did not plea, Cuero ro’s the state court violated federal by prosecutor’s the harm” caused clearly law established contrary: It exposed breach. To the Cuero Santobello. It further violated trial going receiving to the risk of clearly established requiring federal law years an indeterminate 64 to life sentence. constructiоn of plea agreement under hardly “remedy” This is the Cuero would Adamson, state contract law. See 483 U.S. properly given have elected had he been a 2680; at 5 n. Buckley, ultimately choice. That Cuero was able to worse, F.3d at 697. Even the last reasoned “bargain” years for an indeterminate 25 decision of the state courts relied on two analysis; life sentence does not alter inapposite state law cases and failed to lawfully pursued the state could not have even acknowledge, much less apply, the an indeterminate life sentence in the first well-established authority place if it had not allowed to been breach contrary that dictated the result. This er- plea agreement. Again, per- Cuero had injurious ror had a “substantial and effect” formed his part agreement by plead- of the Cuero, serving who is an indeterminate ing guilty to felony charges, the two admit- sentence, which, life the minimum term of strike, ting single prior and conceding years, is well in excess of 14 year, prison priors, giving govern- his four promised by month maximum govern- bargain sought. ment the it Because Cuero Abrahamson, ment. See Brecht v. 507 U.S. already performed, had “fundamental fair- 619, 637, 123 L.Ed.2d 353 compelled (1993) (citation omitted). ness demands that the state be Cuero is entitled to adhere to agreement as well.” to habeas relief.. (citation omitted).

Brown, 337 F.3d at 1162 Accordingly, the judg- district court’s Cuero is therefore entitled to the benefit of denying ment petition Cuero’s for a writ of original bargain: his a maximum sentence corpus habeas is reversed with instructions years, of 14 in prison. months requiring to issue a conditional writ state to resentence Petitioner in accor- III. Conclusion original plea dance with Diego Superior The San Court failed to sixty days within of the issuance of the recognize entry Judge Cuero’s mandate. acceptance guilty plea Ervin’s of Cuero’s and REMANDED. REVERSED pursuant plea agreement to the written binding By on both allowing was sides.

prosecution agreement, to breach the re- APPENDIX A.1 J., attorney good (Douglas, concurring) No in the state could in con- 92 S.Ct. 495 ("[A] plead guilty ought science advise his client to court to accord a defendant’s considerable, bargain attorney preference controlling, strike if that cannot be if not prosecution keep weight rights assured that the must inasmuch as the fundamental bargain[.]”). Although dispositive, prosecutor’s when flouted breach of a decided, defendant, majority bargain Santobello was “a of the are those of the not of the J„ State.”); (Marshall, court’s members ... [were] on record as fa- id. at 92 S.Ct. 495 voring looking dissenting) (explaining Douglas's to defendant’s [as wishes that Justice Fischer, concurrence, remedy].” coupled dissenting choice of Dennis A. with Be- votes,

yond Reneged appeared majority Santobello—Remedies Plea to create a in favor Bargains, Valley honoring preferred 2 U. San Fernando L. Rev. the defendant’s reme- Santobello, (1973); dy). see also 404 U.S. court’s denial of the writ the district O’SCANNLAIN, Judge, Circuit have been affirmed. corpus habeas should dissenting: I dissent. respectfully erroneously orders Today, the Court prisoner relief to a state federal habeas I plea the basis of a non-existent A state contract law. Because and irrelevant recapitulate to the rele- appropriate of It is of the California Court the decision driving under the influ- was vant facts. While affirming Cuero’s conviction Appeal Michael Daniel to, methamphetamine, ence of contrary nor an unreasonable neither off the road and crashed his of, Cuero veered application precedent, Feldman, Jeffrey car into another driver sentencing the motion. A hearing was then standing pickup who was outside his truck scheduled.

on the side of the road. Feldman sustained ‍​​​‌​‌​‌‌‌​​​‌​‌​‌​‌​​‌​‌‌​​‌‌‌​​​​‌​​‌​​‌​​​​‌​‍injuries including ruptured

severe a B spleen, damage, disfigure- brain and facial State, According to the during prep- the Cuero, prоhibited ment. a convicted felon aration of the sentencing memorandum for firearm, possessing from a had a loaded court, superior the probation officer firearm with him. discovered that one of prior Cuero’s con- weeks,

Over the next two the State filed victions a constituted strike in addition to complaint a an and then amended com- single alleged strike in the first plaint against Cuero. The amended com- complaint.3 amended Prior to the sched- plaint charged (driving two felonies under uled sentencing hearing, the State moved possession the influence and of a 969.5(a) firearm under California § Penal Code felon) by a and one (being misdemeanor further to complaint amend its again to under the influence of a controlled sub- add allegation of the second strike. stance). alleged The State that Cuero had opposed Cuero February the motion. On prior prison served four terms and that superior granted court the mo- prior one of Cuero’s convictions constitut- tion with the condition that Cuero would ed a “strike” under California’s “three permitted be to withdraw his guilty plea, law.” See Cal. Penal Code strikes thus restoring all of his constitutional 667(b) (i).1 § initially pleaded Cuero “not rights. The court then accepted filing for — guilty” to in charges the amended com- the second amended complaint alleging the plaint. additional strike. 8, 2005, 27, 2006,

On December appeared Cuero On March Cuero moved to superior before the court change his guilty plea withdraw his entered on De- guilty. signed change He cember granted 2005. The court form, which stated that he had not plea. been motion and set aside that part As of a plea by any induced to enter the promises “negotiated guilty plea,” the State filed a any kind and that he had no complaint deals with third amended omitting the fel- After accepted on-in-possession State.2 the court had charge, plead- and Cuero Cuero’s on both felonies and his ad- guilty charge driving ed to the under “prison missions to the priors” prior the influence and prior admitted the two strike, State moved to April dismiss strikes. On the court sen- count, granted misdemeanor and the court years tenced Cuero to a term of 25 to life strikes, strike, actually prior 1. Cuero had prosecution two but the must establish that initially State did not realize that fact. 'personally great the defendant inflicted bodi- ly injury any person, other than an accom- form, 2. This which is the same form that the plice, personally or used a firearm’ under mistakenly majority ment, plea agree- a written calls 1192.7(c)(8) 'personally section or that he reproduced Appendix is A to this dangerous deadly weapon’ used a or under dissent. 1192.7(c)(23)” section California Penal violating 3. Cuero had been Cali- convicted (internal omitted). Code. Id. alterations Ac- 245(a)(1), prohib- Penal fornia Code which State, cording to the Cuero’s admission of a deadly weapon its assault with a other than a “personal deadly weapon” allegation use of 245(a)(1) firearm. “Not all section violations appear originally did not in the files it com- constitute strikes under California law.” Gill piled preparation charging Cuero after (9th 2003). Ayers, 342 F.3d Cir. the car crash. 245(a)(1) qualify "[T]o a section conviction as 898 he court, properly denied and it was pro- and where plea agreement to

pursuant timely appealed. judgment. nounced II C A to the California appealed Cuero Wende, v. 25 People to Appeal. Pursuant reminder, that it must be observed As 839, P.2d 436, 600 Cal.Rptr. 158 Cal.3d petition federal habeas prisoner’s a state (1979), California, 386 Anders v. and 1071 any granted respect with to “shall not be 1396, 738, L.Ed.2d 493 18 U.S. in the merits adjudicated on claim that was (1967), counsel appellate appointed Cuero’s adjudi- unless the proceedings State court in forth evidence setting a brief filed claim— cation of the court, argument presented no superior (1) con- in a that resulted decision was reversal, appeal asked the court but for to, an trary or involved unreasonable The brief for to the record error. review of, clearly established application poten two the court’s attention to directed law, by the as determined Federal (1) tial, “whether arguable, not issues: but States; Supreme Court of the United by its court abused discretion the trial or to amend the prosecutor permitting (2) that based in a decision was resulted after priors additional allege to complaint determination of on unreasonable an (citing People guilty plea” initial [Cuero’s] light in of the evidence the facts 468, Cal.Rpt 42 r.2d Cal.App.4th Sipe, v. 36 pro- in the State court presented (Al (1995); Superior Court People v. 266 ceeding.” 464, Cal.Rptr. varado), 255 Cal.App.3d 207 (2) (1989)); the amend “whether 46 2254(d). § “This is a to ’difficult 28 U.S.C. agree a breach of a constituted ment for ’highly deferential standard meet’ entitling process, in of due violation ment rulings, which de evaluating state-court of the performance specific [Cuero] given decisions be mands that state-court ” (citing People v. agreement” original the doubt.’ Cullen v. Pin benefit 902, 1013, Walker, Cal.Rptr.2d 1 54 Cal.3d 1388, holster, 170, 181, 131 S.Ct. U.S. 563 by (1991), part overruled 819 P.2d (2011) Harring (quoting 179 L.Ed.2d 557 177, Villalobos, v. Cal.4th People 86, 102, Richter, 562 U.S. ton v. (2012); Peo 277 P.3d 179 Cal.Rpt r.3d (2011); 178 L.Ed.2d 624 Woodford Mancheno, 187 Cal. 32 Cal.3d ple v. Visciotti, 19, 24, 123 S.Ct. U.S. (1982)). The Cali Rptr. 654 P.2d (2002)(per L.Ed.2d curiam . per Appeal granted Cuero fornia Court of majority’s suggestion Contrary to the behalf, own file a brief on his mission 2254(d) “exceptions § authorize a that the court re respond. not The but he did relief,” Maj. Op. grant of habeas possible the entire record and viewed conditions are prescribe these clauses raised counsel’s issues Wende/Anders sufficient, necéssary, but habeas they no It concluded that “disclosed brief. requirements AEDPA. relief under Other issue” and reasonably arguable appellate ease, importantly for this exist. Most affirmed, “[e]ompetent counsel noting that 2254(d) repeal § “does not command appeаl.” represented has this Cuero 2254(a) may habeas relief be afford- ’only ground’ to a on the course, peti- prisoner this ed brought due Cuero In custody federal law.” Wil- that his violates district corpus for habeas federal tion

899 1, 5-6, Corcoran, decision, in prior 562 U.S. 131 S.Ct. merits” reasoned see son v. (2010) curiam). 13, 2254(d); Moore, § 276 (per Casey 178 L.Ed.2d 28 U.S.C. v. 386 (9th 896, 2004); F.3d 918 n. 23 Medley Cir. 2254(d)(1), § “clearly of purposes For Runnels, (9th 857, v. 506 F.3d 870-71 Cir. governing law” is “the established Federal 2007) (en banc) (Ikuta, J., concurring in principles by or set forth legal principle (“[W]e in part, dissenting part) do not ’look Supreme Court at the time the state through’ to a state decision which does not Lockyer court renders its decision.” v. An claim.”); address the constitutional see 63, drade, 71-72, 1166, 538 U.S. 123 S.Ct. Schriro, 984, Murray also v. 745 F.3d 997 (2003) (citations omitted). 155 L.Ed.2d 144 (9th 2014)4 (“[W]e Cir. through’ ’look only holdings, opposed It “includes as the last state-court provides decision that dicta, Supreme to the of [the Court’s] deci explanation reasoned capable review.” — Donald, -, v. sions.” Woods U.S. added)); Yates, (emphasis Ortiz v. 704 1372, 1376, 135 S.Ct. 191 L.Ed.2d 464 (9th 2012) (“[W]e F.3d 1034 Cir. look (2015) curiam) (per (quoting White v. Woo — through summary state-court denials to dall, U.S.-, 1697, 1702, opinion the last reasoned state-court on (2014)). 188 L.Ed.2d 698 added)). (emphasis the claim at issue.” B Here, superior adju- court never did dicate the merits of Cuero’s claim that the problem A threshold the opinion’s with complaint second amendment consti- analysis identify is failure to appro its plea agreement tuted a breach of his priate state-court decision before us. The violation of due him process, entitling majority concludes that we should “look specific performance. In Cuero’s brief through” opinion of the California opposition to the motion to amend and in Appeal on direct Court review to the motion, argument oral on the he exclusive- Diego earlier reasoned decision the San ly argued superior that the court should However, Superior Maj. Op. at Court. 884. exercise its state discretion under law to look-through only doctrine applies deny argue leave to amend.5 not Cuero did there has been one reasoned “[w]here claim,” that the second amendment of the com- judgment rejecting a federal Nunnemaker, 797, 803, plaint process. would violate due He did Ylst v. 501 U.S. 2590, 115 (1991), argue any plea agreement prohib- 111 L.Ed.2d S.Ct. and through” we cannot “look ited the second when the federal amendment the com- “adjudicated claim at issue was not nor that he plaint, specific was entitled to majority superior "recog- 4. I note that the relies on one of because the court did not Murray's of law statements that has been un- "acknowledge” (unspecified) nize[]” or Su- subsequent Supreme dermined Court preme precedents Maj. in its decision. Woodall, 1706; decision. See 134 S.Ct. at con- Op. at 886. But a “state court need not Maj. Op. tra at 883-84. even [the cite or be aware of Richter, 2254(d).” § under Court's] cases only 5. Cuero cited California Penal Code (citing Early U.S. at 131 S.Ct. 770 v. 969.5(a), Alvarado, Jackson, People Packer, 3, 8, 537 U.S. (Ct. Cal.Rptr.2d App.), granted review (2002) curiam) (per ("Avoiding L.Ed.2d 263 opinion superseded, Cal.Rptr.2d pitfalls require these does not citation of our (Cal. 1996). 914 P.2d 831 I do not understand indeed, require it does not even aware- why majority superior criticizes the court cases— cases, long ness of our so as neither the rea- addressing for then these sources of law in its soning nor the result of the state-court deci- Maj. Op. decision. at 889-90 & n. 891. them.”)). majority suggests grants The also that it relief sion contradicts Crucially, this is not a de nor that the state court was unreasonable. performance, question, in review of the constitutional plea agreements to construe novo required Indeed, strong as even a case for relief does accordance with state contract law. contrary trial counsel the state court’s conclusion argues to us that his mean Cuero Murray, 745 F.3d at failing for to raise Cuero’s was unreasonable.” was ineffective (internal сita- superior quotation claim the marks and process due before 996-97 omitted). court. tions Thus, process raised a due Cuero never principles to these serves “Adherence claim, superior the court did not de- and of important interests federalism and com- result, a Cuero’s claim that cide one. As ity. requirements ’pre- AEDPA’s reflect complaint amendment of the the second sumption that state courts know and follow ” plea agreement and preexisting breached Donald, (quot- the law.’ 135 S.Ct. at 1376 thereby process adju- due was not violated 357). Visciotti, at ing U.S. by superior merits dicated on the reviewing state criminal convictions “When adjudicated court. Such claim was indeed review, judges federal are on collateral single deci- on the merits state-court respect due required to afford state courts opinion sion: the California Court by overturning only their decisions when review, only disposi- Appeal on direct dispute could be no that there reasonable respect to which the tive “decision” with they wrong. were Federal habeas review petition corpus for habeas has been guard against thus exists as ’a extreme brought.6 justice malfunctions in the state criminal systems, ordinary not a substitute for er- C ” through (quot- appeal.’ ror correction Id. course, a state court’s deci- “[w]here

Of 102-03, Richter, ing 562 U.S. at unaccompanied by explanation, an sion is 770.). petitioner’s burden still must habeas by showing met there was no reason-

be Ill deny for the state court to re- able basis Richter, prevail petition lief.” 562 U.S. at 131 S.Ct. 770. In order to his situation, corpus, must In such a we must ask “what habeas Cuero demonstrate (1) (among things) ... other that: on Decem- arguments sup- or theories could have plea agreement court’s decision” and ber he had a with ported[] the state possible prohibited then determine “whether it is fair- terms that amendment (2) complaint; such had jurists disagree plea agreement minded could those significаnce entry constitutional arguments or theories are inconsistent before holding prior judgment, breaching in a decision of’ the so that it would with (3) process; 770. violate due and rescission of Supreme Court. Id. S.Ct. (withdrawal “Thus, plea agreement court of the sup- when the state does not such decision, plea) constitutionally acceptable for its we are in- was not a ply reasoning remedy plea agree- in an for the breach of the engage independent structed to re- Contrary majority’s analysis, of the record and ascertain whether ment. view objectively holdings the state court’s decision was under the Court’s slight majority requires a caveat. With on collateral review. While the does 6. This statement issue, respect to Cuero’s ineffective assistance of I would affirm the denial not reach claims, the relevant state-court deci- counsel respect the writ with such claims. Appeal sion is that of the California Court of read, existence at the time of the California Cuero confirmed he had under- decision, stood, he cannot. Appeal’s thoroughly Court of and reviewed with his

attorney submitted, form that he signed document, had initialed A questions that he had no about it.8 majority erroneously The concludes “14 year, What about the 4 month maxi- that, initially when pleaded guilty Cuero mum promised by the government,” Maj. 8, 2005, on December he a “written had Op. at relied upon heavily by so plea agreement” government in which the majority? a promise figment Such is a of that guaranteed punishment would be no majority’s imagination. only The state- greater years, than 14 in prison. months signed by prosecutor ment on the 882-83, 882-83, Maj. Op. at 885-88 & change plea of form following: was the 8-9, 889-90, 891, contrary, nn. 891. To the People California, “The of the State of jurists readily fairminded could conclude plaintiff, by its attorney, the District At- guilty plea that Cuero’s initial not was torney County for the Diego, of San con- State, by any agreement induced with the curs with the plea Guilty/No defendant’s of let alone an that the State Contest as set forth A Appendix above.” at never amend complaint. would its hearing prosecutor 3.And at the Kristian 8, 2005, signed On December Cuero a Trocha said three words before Cuero en- change of plea complet- standard form. As plea. tered his Those words were “Kristian ed, that document states: Trocha” identify himself in his initial the defendant the above-entitled appearance, and “Yes” in context of ease, in support my plea Guilty/No following exchange: Contest, personally as declare follows: THE It is COURT: a sentence for the court, People. no deals with the His 2. I have not been induced to enter this exposure years, maximum is 14 plea by any promise representation or prison, years months on parole (State kind, any except: any agreement $10,000 and a fine. That’s the most he Attorney.) with the District by true, could receive way plea; of this STC[7] DEALS PEOPLE. Tamayo? Mr. W/ —NO ¶ A Appendix ap- at 1 2. Cuero’s initials MR. It TAMAYO: is. pear next to the line indicating “STC—NO THE COURT: Mr. Trocha? PEOPLE.” Id. Cuero declared DEALS-W/ Yes. [MR. TROCHA9]: “read, understood,

that he has ini- added). tialed each item ... everything Appendix (emphasis above See B at Thus, on the form ... is true and correct.” Id. at the court confirmed that there were ¶13. In plea colloquy day, prose- his that same “no with the And the People.” deals judge’s transcript says 7. on actually Based statements at the 9.The that someone Rodriguez Appendix named Dan said “Yes.” hearing, appears it that “STC” stands for B at 2. The record does not indicate who Dan "sentence for the court.” is, Rodriguez appeal so the court of could easily prosecutor have concluded that majority 8. Because the and I cannot seem to only said his name before Cuero entered his agree on the basic facts of what was said at plea. purposes Because it does not matter for plea hearing on December I dissent, of this I assume that this was a tran- transcript hearing Appen- attach the of that as scription error and that Mr. Trocha was the my dix B to dissent. person responded who to the court. government ever conclude that did to refrain from promise cutor did not anything, let alone that it amending promise as the com- Cuero doing anything, such longer complaint. in a sen- would never amend its plaint, that would result descriptive as a simply agreed, He tence. B months,

matter, was the years, that 14 facing term Cuero was prison maximum plea agreement Even if there were a the time.10 from prohibited with terms that the State amending complaint, counsel’s brief its Cuero would still appellate

Both Cuero’s that, Appeal’s deci- need to show under the and the California holdings at the time of the the initial was not Court’s Califor- imply sion decision, agreement. Appeal’s In his brief nia Court of a fairmind- induced jurist possibly counsel stated that ed could not conclude either appeal, Cuero’s constitu- guilty,” plea agreement with no men- lacked initially “pled Cuero contrast, entry judg- In tional before the significance plea agreement. tion of a a constitution- guilty plea the second was ment or that rescission was brief states that remedy a of plea agreement” ally acceptable and for breach the “pursuant made to charge bargain. plea agreement. the sets forth the terms of to Similarly, Appeal the Court of refers Court, briefing In our Cuero his before “guilty pleas” the initial and the subse- Ap that of contends the California Court quent “negotiated guilty plea,” which objectively an unrea peal’s decision was appeal the court of strongly implies that application sonable of Santobello v. New plea agreement that no existed determined York, 495, 404 U.S. 92 S.Ct. 30 determination plea. for the initial Such (1971).Apparently L.Ed.2d 427 unsatisfied an de- would not constitute unreasonable arguments with the that Cuero made on of thе facts. termination behalf, majority regrettably his own the express quotation Mabry declaration that adds some selective of Given Cuero’s Johnson, by plea “induced to enter this 467 U.S. 104 S.Ct. he was not (1984), any representation any or kind” L.Ed.2d 437 and Ricketts v. Adam promise son, 2680, 97 no deals the 483 U.S. L.Ed.2d and that there were with (1987), jurist readily to of the People, support grant a fairminded could its writ.11 that, suggests plea gain” majority in the existed and that Cuero believed he 10. The (1) years, hearing, “identified docu- never face than 14 [the the State would more Appendix plea prison. as the written A] ment months in But the record contains no 9; (2) agreement,” Maj. Op. promise agreement by drop any at 887 n. "stood or the State to expressed Judge and intent charges amending [its] before Ervin from or to refrain the com- ” 886; today,’ Maj. Op. at plaint. regard, majority to 'settle this case In that the confuses (3) plea agreement "that the accepted and “assented” actions taken after the was with charge specific the and not to the was as to promises to take such actions. Trocha moved sentence," Maj. Op. simply at 886. It did not. light plea.” Appendix to of the B "[d]ismiss Appendix indicated, B. Nowhere in the attached See the at 8. But State never in either transcript will the reader find the statements change plea hearing, the form or the majority the ascribes to the State. One that required by that such dismissal was the terms any by will vain for reference the search in agreement. any Deputy Attorney, Deputy District or the Defender, matter, “plea for that to a Public majority’s opinion, 11. The like much of our agreement.” precedent, circuit vacillates between conclu- reasonably "contrary majority supe- The notes that the sions under the to” and "unreason- 2254(d)(1). "plea agreement," application clauses of rior court referred to a able of” to”); Maj. Op. ("contrary Maj. reasonably speculates "charge it at 887-88 that bar- resрectfully suggest I that the Court of The ultimate relief to which petitioner is Appeal’s to, decision was contrary neither entitled we leave to the discretion of the of, an application court, nor unreasonable Santo- state which is in a position better bello, Johnson, or Adamson. to decide whether the circumstances of require only

this case spe- there be cific performance of plea, in which petitioner case should Santobello, In the Supreme Court ad- be resentenced by a different judge, or dressed “whether the State’s failure to whether, in the view of the court,- keep a commitment concerning ‍​​​‌​‌​‌‌‌​​​‌​‌​‌​‌​​‌​‌‌​​‌‌‌​​​​‌​​‌​​‌​​​​‌​‍the sen- require circumstances granting the tence guilty plea recommendation on a re- relief sought by i.e., petitioner, op- quired a 257-58, new trial.” 404 U.S. at portunity to his guilty. withdraw There, part S.Ct. 495. as of plea bargain, 262-63, Id. at 92 S.Ct. 495. The Court prosecution agreed had to make no noted if “the state court decides to sentence, recommendation as to the allow withdrawal of plea, the petitioner agreed plead Santobello had guilty to a will, course, plead anew to original lesser-included offense. Id. charge on two felony counts.” Id. at 263 n. sentencing, 495. At prosecutor instead 2, 92 S.Ct. 495. sentence, recommended the maximum judge 259-60, Thus, which the imposed. Id. at contrary majority’s analy- certiorari, Upon sis, S.Ct. 495. Court va- Court in Santobello did not hold cated and remanded for the state that literally every court to plea agreement offered consider the remedy by appropriate prosecution the accepted by and the of the agreement. 262-63, breach Id. at 92 defendant is by specific enforceable per- S.Ct. 495. Rather, formance. the that, Court held a when trial court’s judgment of conviction part As of reasoning, its the Court in- is based plea by on a promise induced a deed made the broad upon statement by state, later broken judgmеnt the the which majority the relies: “[W]hen a must be vacated. The Court further held in any significant rests degree on a prom- that the ultimate would relief be left “to agreement ise or prosecutor, of the so that court, the discretion of the which it can be said to part be of the inducement in a position [was] better to decide wheth- consideration, or promise such must be er the of circumstances case” re- [the] fulfilled.” Id. at 92 S.Ct. 495. quired specific performance or withdrawal However, general, this isolated state- guilty of the plea. at Id. S.Ct. 495. not, itself, ment does constitute the Santobello,12 holding entire respect With the proper remedy government’s for the

breach, the Court remanded to the state majority’s The grant petition of the and court held: entirely premise rests on the that “[u]nder 887-88, (“unreasonable Op. at appli- 889-90 Supreme 12. Accurate identification of the of”). cation precise. We be more holdings should The step analy- Court’s is a critical in our " 'contrary to' application 2254(d)(1) § 'unreasonable sis under 28 U.S.C. because 2254(d)(1) of clauses in are "clearly distinct and established Federal law” includes separate Payne, dicta, have meanings.” only Moses v. holdings, opposed to the as (9th 2009) Andrade, F.3d (citing Donald, Supreme Cir. Court's decisions. See 73-75, 1166). 538 U.S. at 123 S.Ct. 135 S.Ct. at 1376. is without standing alone law, bargain A plea Supreme Court clearly established it is itself significance; plea agree- constitutional and his convicted stood Cuero which, until first executory moment the binding the a mere ment became court, guilty his a accepted judgment of judge in the Court embodied Superior undercuts or liberty Johnson Maj. Op. at 884. an accused deprive not plea.” does in- constitutionally premise. protected such other any guilty plea that ensuing It is the terest. ad- Johnson,. In Only after the Constitution. implicates acceptance a defendant’s “whether dressed he con- guilty was pleaded respondent plea bargain proposed prosecutor’s aof conviction which victed, it is that to have the right a constitutional creates respon- deprivation at to the gave 467 U.S. rise enforced.” specifically bargain There, at issue here. prosecutor liberty 2543. dent’s exchange for a that, in proposed (footnote 507-08, 104 S.Ct. at Id. a would recommend prosecutor guilty, omitted). ignores majority completely The concurrently with served 21-year sentence a fairmind- conclusion that the reasonable 505-06, 104 S.Ct. Id. at other sentences. first sen- draw from the jurist ed could called counsel defendant’s 2543. When ... “plea bargain a passage: of this tence accep- and communicated prosecutor ... significance constitutional is without offer, told de- prosecutor tance of of a court.” judgment in the embodied until been had a mistake “that fense counsel words, judgment, it is the In other Id.13 at offer.” Id. and withdrew made guilty plea, acceptance of not the made then prosecutor The 104 S.Ct. 2543. and the the state the deal between “seals 21-year to recommend offer a second Maj. Op. at 885.14 Contra defendant.” consecutively to the served to be sentence ulti- sentences, the defendant which explained other Court further The Johnson “In accordance with mately accepted. Id. defen- develops it that the “only when im- judge the state trial plea bargain, its conse- fairly apprised of dant was to be served 21-year sentence posed challenged under be can his quences sentences.” consecutively previous to the 467 U.S. Clause.” the Due Process Id.. applied The 2543. Court then 104 S.Ct. that rule: reasoned: the analysis,

In Court its finding the can mean either passage by word 'conviction' selec- majority this The distorts 13. judgment entry a on guilt the second of final words or the tively pairing three from of States, the first sen- U.S. finding.” v. United 508 three words from Deal sentence with that ’impli- guilty thus plea “A L.Ed.2d 44 tence: defendant’s S.Ct. 124 113 Constitution,’ transforming the 143-46, 1993; the cates S.Ct. 1993 id. at see also agreement’ executory bargain Here, a 'mere from J., (Stevens, dissenting). the Maj. Op. at 885. binding contract.” into a However, sense, in latter the Court used "conviction” paraphrasing does tortured such finding judgment on a entry a final the i.e. of passage above or the remotely the reflect not plea bargain Having just that a guilt. stated of holding Johnson. any liberty or deprive an accused not "does constitutionally protected interest” "un- other from the could arise 14. Some confusion court,” the judgment a til embodied in "conviction” Court’s use of “convicted” a later that not state two sentences Court did Alabama, Boykin passage and in in this deprivation of a plea gives rise to the guilty 238, 242, 23 L.Ed.2d U.S. entry judg- liberty defendant’s (1969), majority I note relies. before upon which the And, understanding of the this even if ment. multiple has "conviction” that the word Johnson is “conviction” in Court’s use of jurists can meanings which fairminded about objectively wrong, unreasonable. it is certainly disagree. is correct "It plea was in no [Johnson’s] sense induced formance of a broken prosecutorial prom- offer; prosecutor’s withdrawn un- ise remedy as the for plea” such a and that Santobello, pleaded like who guilty “permitting replead Santobello to was thinking bargained he had a specific for within range of constitutionally appro- prosecutorial sentencing recommenda- priate remedies.” Id. at 510-11 n. made, tion which was not ultimately at Santobello, S.Ct. 2543 (citing U.S. respondent the time pleaded guilty he 262-63, 495; id. at 268-69, 92 the prosecution knew would recommend (Marshall, J., S.Ct. 495 concurring in part 21-year a consecutive sentence. [John- and dissenting part)). in “It follows that does not challenge son] the District rights [Johnson’s] constitutional could not finding pleaded Court’s that he guilty have been violated. Because he pleaded with the advice of competent counsel after prosecution had breached and with full awareness of the conse- ’promise’ him, its he was in no worse quences knew that the prosecutor —he position than Santobello would have been would recommend and that the judge had he permitted been to replead.” Id. impose could the sentence now under attack. 510,104

Id. at S.Ct. 2543. The Court concluded that “in- Johnson’s The majority concludes, also erroneous- ability to enforce prosecutor’s offer is ly, that the state court was “constitutional- without constitutional significance.” Id. ly obligated to construe agreement deprived Johnson “was not liberty in his accordance with state contract law” and any fundamentally way. unfair was [He] that a “state court must supply remedy fully likely aware of the consequences for a breached agreement that com- when pleaded guilty; he it is not unfair to ports with state Maj. contract law.” atOp. expect him to live with consequences those 890. Although majority heavily relies 511,104 now.” Id. at S.Ct. 2543. for these propositions, Adamson re- I Thus, the Johnson held that a spectfully suggest that sup- case does not inability defendant’s enforce offer port, require, let alone such conclusions. withdrawn entry before the of judgment is without significance, constitutional not Adamson, In the Supreme Court ad- every plea agreement of a breach after a dressed “whether Jeopardy Double guilty plea violates the Constitution. Con- prosecution Clause bars the of [a defen- sequently, process there is no due violation first-degree dant] murder his following long so as prosecution fulfills the breach of plea under he which promises that plea upon induced the which pleaded guilty offense, had to a lesser had judgment the of conviction is based. sentenced, been begun and had serving a Adamson, term of importantly, imprisonment.”

More Johnson clarified the 3, in holding There, Santobello. The U.S. at Court noted 107 S.Ct. 2680.15 the that expressly “Santobello to Arizona Supreme declined hold Court held that a written that the Constitution compels per- specific plea agreement16 required to Adamson description, Ricketts, 15. Given this might get pendix. one the See Adamson v. 789 F.2d holding sense that the unlikely of is 722, Adamson (9th rev'd, 1986), 1, 731-33 Cir. 483 U.S. to bear on the instant case. 2680, 107 S.Ct. 97 L.Ed.2d 1. Contrast that plea agreement change plea with the of form published entirely Our Court the of the 16. case, expressly in this which states that there eighteen-paragraph plea agreement ap- in an dissent’s issues. The of those disposition indi- of the other two retrial testify at the is thus contracts the law of on discourse of the the terms viduals, that he violated ques- The illuminating but irrelevant. testify at to by refusing agreement plea obli- plea agreement the tions whether plea the of retrials, that the terms the testify at the to respondent the gated first-de- original the required agreement and, so, if Dunlap and Robison of retrial auto- reinstated charge to be murder gree this breached respondent the whether The 107 S.Ct. 2680. matically. at Id. to appropriately left matters duty are subsequent that the held Supreme Court courts.... the state Double the not violate did prosecution that “terms It reasoned 107 S.Ct. Jeopardy Adamson, Clause. 6 n. at 488 U.S. in be clearer: could not upon agreement the to the clause of added (emphasis occa- relies). breach Supreme [Adamson’s] of the the event As majority which testify, parties to by a refusal in an unrelat- once stated eloquently sioned Court ante, quo status to the returned the state- importantly, be would “Most context: ed have no would [Adamson] in case contained which is dictum pure is dictum. It ment at Id. to waive.” it jeopardy defense And counterargument. double to a in a rebuttal in Thus, held the Court 2680. in that re- even unnecessary dictum is Jeopardy Sons, Double that Wiley Adamson & Kirtsaeng v. John spect.” — vacating from not a state U.S.-, does bar Inc., Clause reinstating (2013). judgment conviction a L.Ed.2d 392 express charges pursuant criminal dictum, has the footnоte if not Even plea agreement. aof terms majority. by the The misinterpreted been of our precedent hold- with rely not on the consistent majority majority, does The statement proposi- circuit,17 solely on the erroneous focuses for its ing of Adamson plea agree- a of the tions, part on sentence “the construction rather that but obligations flow- footnote of in a ment and the concomitant contained dictum are, bounds the Court within broad ing footnote therefrom opinion. In Court’s Maj. reasonableness, law.” that the of state contention matters Adamson’s addressed However, it is clear context had misconstrued Op. at 890. Supreme Arizona stating not was agreement: Supreme Court plea that the terms of “constitutionally are obli- courts Arizona that state second-guess We will in accor- agreement to construe gated lan- of the construction Court’s law” and that with state contract we dance plea agreement. While guage of the by failing they the Constitution agree- violate independently assess And the footnote Maj. at 889. Op. so. do respondent’s double ment’s effect the contention remotely support does not construction rights, the jeopardy the Constitution court violates state ob- and the concomitant agreement remedy “supply are, if it does not within flowing ligations therefrom comports reasonableness, matters breached broad bounds of Maj. Op. 890. contract law.” the with state law, not disturb and we will important Respecting opposite. Quite the reasonable Supreme Court’s Arizona below, de- not follow these we should Appendix A at 1 cussed agreement. See was no they with irreconcilable because are cisions ¶ 2. Supreme Court. intervening decisions of Terhune, 694-95 Buckley 441 F.3d v. 17. See infra. (en banc); Woodford, 2006) (9th Davis v. Cir. 2006). (9th As dis- Cir. 446 F.3d interests of federalism comity, prosecutor purportedly breached a explained the construction of plea agreement after the plead- defendant plea agreements and whether a breach has guilty. Finally, ed Adamson does not re- occurred are matters of state law which motely There, resemble this case. the de- “appropriately are left to the state courts.” fendant breached his plea bargain, and the Adamson, 483 U.S. at 6-7 n. question was whether or not the Double 2680. Federal courts must not “seeond- Jeopardy prohibited Clause the state from guess[ finding of a ] breach” and they vacating the conviction and reinstating have no “license to substitute a federal charges. criminal interpretation of the terms of a agree- Therefore, Santobello, Johnson, ment for a reasonable interpreta- Adamson do not specific address the ques- Thus, tion.” footnote, Id. the Adamson tion presented by this case: whether the upon relies, which the majority is about requires Constitution specific performance courts, deference to state impos- about of a plea bargain after a defendant has ing new requirements constitutional pleaded guilty but before the court has state courts. judgment. result, entered As a the state court’s decision could not “contrary

C be to” any holding from the Supreme Court. See The California Court of Appeal’s deci Donald, 135 S.Ct. at 1377. sion was not “contrary Santobello, to” Johnson, or Adamson. “Because none of

[the Court’s] eases confront ’the D specific question presented case,’ by this Nor was the Ap- Court of California the state court’s decision could not be ’con peal’s decision an applica- “unreasonable . trary any to’ holding from” the Supreme tion of’ the Santobello, Court’s holdings Donald, Court. 135 S.Ct. at (quoting Johnson, and Adamson. As discussed Smith, Lopez 1, 4, 10 135 U.S. S.Ct. above, jurists fairminded easily could con- (2014) curiam)). 34 L.Ed. 55 (per clude that Cuero’s initial plea did not rest Santobello, In the defendant pleaded promise “on a or prose- of the guilty reliance upon promises in the cutor, so that it can be part said to be prosecution’s offer, original prosecu- the inducement or consideration.” Santo- tion promise broke a origi- contained in its bello, 495; U.S. see offer, nal and the court judgment entered ¶2 (“I Appendix A at 1 have not been on the basis of the by induced plea by any induced to enter this promise promise. Santobello, unfulfilled Unlike kind, representation any or except: ... here the superior court’s judgment was not PEOPLE.”).18 NO DEALS W/ entered on the basis of the initial plea, purportedly induced prom- unfulfilled assuming Even that the State did make Rather, judgment ises. was entered on a promise not to complaint, amend its fair- subsequent plea, basis jurists that, which was readily minded could conclude by promises Johnson, induced that have been ful- inability under Cuero’s to en- Johnson, filled. In prosecution with- force the original plea agreement, which original drew its offer before the defen- was entry judg- withdrawn before the pleaded guilty. Johnson, ment, dant Unlike here is “without signifi- constitutional construe, any plea agreement 18. Without plea agreement in accordance with state purported requirement Adamson's application construe law has no contract here. 908 (2010) curiam); v. Estelle 507-08, 510, (per 276 L-.Ed.2d Johnson, at U.S. 467

canee.” 475, 62, 67, McGuire, 112 S.Ct. 502 U.S. Moreover, ju- fairminded 2543. 104 S.Ct. (1991); Jeffers, v. Lewis 385 116 L.Ed.2d that, prosecution if the conclude rists could 3092, 764, 780, 111 110 S.Ct. 497 U.S. with binding agreement breach some did Harris, (1990); Pulley v. 465 L.Ed.2d 606 replead was Cuero, to [Cuero] “permitting 871, 37, 41, 79 L.Ed.2d 29 104 S.Ct. U.S. constitutionally appro- range of within 21-22, 19, (1984); 423 U.S. Hodges, Rose v. Johnson, at 467 U.S. remedies.” priate (1975) 175, (per 46 L.Ed.2d 162 96 S.Ct. (explaining 11, 2543 n. 104 S.Ct. 510-11 curiam). Santobello, & at 263 Santobello); 404 U.S. 2, 495.19

n. 92 S.Ct. that the writ must it holds Specifically, ruling on Therefore, court’s the state court failed “to the state issue because lacking not “so here was presented claim agreement consis- interpret Cuero’s well was an error justification that there in law” contract and tently with California existing in comprehended understood remedy for а breached “supply to failed fairminded any possibility ‍​​​‌​‌​‌‌‌​​​‌​‌​‌​‌​​‌​‌‌​​‌‌‌​​​​‌​​‌​​‌​​​​‌​‍beyond law with comports state Richter, at 562 U.S. disagreement.” “But it Maj. Op. at 890. is law.” contract result, the state court’s 770. As 131 S.Ct. law that noncompliance with only federal application unreasonable ruling was not an judgment sus- criminal renders a State’s Johnson, Santobello, or Adamson. attack in the federal to collateral ceptible unambiguously statute The habeas courts.

IV may issue court that a federal provides analysis faulty majority’s Perhaps ground ‘only on prisoner to a state writ by its erroneous explained can best be custody in violation that he is (1) of state errors perceived reliance treaties of or or laws Constitution ” (to (2) bridge the law; precedent circuit Corcoran, at 562 U.S. United States.’ holdings Supreme Court’s 2254(a)). between gap (quoting 28 U.S.C. 131 S.Ct. (3) case); Supreme Court deci- and this “repeatedly has held Supreme Court The Court the California post-dates sion that relief does not corpus ‘federal habeas ” (4) decision; issues of law Appeal’s (quoting law.’ Id. he for errors generality. highest levels 475). framed at the McGuire, 112 S.Ct. 502 U.S. worse, majority mis- matters Making of a federal habeas province “It is not the upon law sources of many of the construes determina- state-court court to reexamine improperly it which relies. (quoting Id. questions.” on state-law tions 475) 67-68, McGuire, 502 U.S. at

A omitted). (alteration these majority protests that cases The where, situation as speak “do not erroneously per- relies on majority The here, clearly has Supreme held Maj. Op. at 887- of state law. ceived errors process due Cooke, the federal constitutional 10; 562 that v. & n. see Swarthout prin- by reference is itself 219-22, right defined S.Ct. U.S. n. 10. Maj. Op. at 902 (2011) curiam); of state law.” ciples Wilson (per L.Ed.2d citation to expect a 1, 5, 178 One would Corcoran, 562 U.S. fully restoring no rights his trial indirectly reinforces this conclu- 19. Adamson —resulted Adamson, jeopardy See returning double violation. emphasis that repeated sion with its 10-11, i.e., 107 S.Ct. 2680. U.S. at quo status the defendant to the ante —

909 precedent Court to strong such a follow which the defendant has been convicted statement, but majority none exists. The either in this elsewhere, state or the case, our Buckley complaint cites may which cites Adam- be forthwith amended to Maj. Op. charge prior son. at 902 n. 10. But Adamson conviction or convic- fact, tions thing. held such In and the may no Adamson amendments does and shall be upon made not contain the order of the process” words court. any- “due in the opinion. where Court’s “No opinion 969.5(a). § Cal. Penal Code None of these Supreme supports [the Court] convert- statutes prosecutor’s indicate that a ability ing [contract California’s into a law] sub- to amend the information is limited to requirement.” Cooke, stantive federal 562 situations in which a agreement has 220-21,131 U.S. at S.Ct. 859.20 been entered.

In People Valladoli, v. the California 2 interpreted § both 969a § and former 969 in determining wheth lk if Even the court grant could habeas er an information could be to amended law, relief on the basis of majori- allege prior felonies a defendant was after ty misconstrues California state law. guilty found 590, at trial. 13 Cal.4th 54 California state law not prohibit did the Cal.Rptr.2d 695, (1996). 918 P.2d 999 Dis second amendment of complaint. Sev cussing § former 969 the predecessor to \ provisions eral of the California Penal 969.5(a), § the court said that if the defen expressly permit Code prosecutor to dant “pleaded had guilty before magis an amend information complaint. or See 859a, trate under section ... express 969a, §§ Cal. 969.5(a), Penal Code 1009. terms of section 969 permit would have lh 1009, “Under section People may ted the People to amend information to amend an information without leave of charge prior his convictions after court prior entry to of a defendant’s plea, guilty Id., plea.” 695, 54 Cal.Rptr.2d 918 and the trial court may an permit amend 1005; P.2d at Tindall, see People also v. 24 ment of an information at any stage of the 767, Cal.4th 102 Cal.Rptr.2d 14 P.3d proceedings.” Lettice, People v. 221 (2000) Cal. 207, 212 (citing Valladoli for this App.4th Cal.Rptr.3d 163 868 proposition). continued, The court “An ob (2013). 969.5(a) Sections 969a specifi and motivating vious underlying force section cally deal with amendment of the com prevent 969 is to one accused of a crime plaint to add allegations felonies, prior quickly from pleading guilty mag before a 969.5(a), upon which the State re istrate and thereby limiting the amount of lied, addresses amendment of a complaint prosecutor time the has to investigate, dis after a guilty plea: cover, charge prior the accused’s felo ny Valladoli, convictions.” Cal.Rptr.2d

Whenever it shall be discovered that a 695, 918 P.2d at 1005. pending complaint to which a guilty has been Thus, made under Section 859a the state statutory scheme and charge does all prior felonies of permit Valladoli a prosecutor request to to Cooke, 20. as we did Just our Court in point has been to undermined that it is Poole, (2003), Brown 337 F.3d clearly Buck- with irreconcilable Corcoran and ley, upon perceived Bullock, and Davis relied error Cooke.See Lair v. 798 F.3d (9th 2015) Gammie, state law to conclude the federal (citing Due Cir. Miller v. (9th Clause Accordingly, 2003) (en banc)). Process was violated. F.3d 892-93 Cir. respect Brown, analysis regarding with to its Buckley, the re- help and Davis are of no quired remedy, reasoning majority’s analysis. these cases — U.S.-, S.Ct. Matthews, allege prior complaint file an amended (2012) cu 2155-56, (per 183 L.Ed.2d agree- entering after convictions 766, Lett, 778- riam); 559 U.S. v. Renico any cite Cali- to majority fails The ment. (2010). 1855, 176 L.Ed.2d 678 130 S.Ct. definitively held that has which fornia case complaint amend a may not prosecutor a on cir- majority relies the Specifically, plea agreement.21 accepts court after the proposi- following for the precedent cuit “re- Supreme Court has Ultimately, the by the Su- tions, supported are which not interpre- court’s that a held state peatedly decisions: preme Cоurt’s law, an- including one tation state (1) pro- due constitutional The “federal challenged of the appeal direct nounced on by refer- defined right is itself cess sitting conviction, court binds a federal law,” Maj. of state principles to ence Richey, 546 v. Bradshaw corpus.” habeas 441 (citing Buckley, 10 Op. at 902 n. 407 L.Ed.2d 74, 76, 168 126 S.Ct. U.S. “con- 695); court is at a state F.3d curiam). Here, (2005) superi- the both (per obligated to construe stitutionally deter- court appellate and the court or in accordance [plea] agreement the complaint of the that amendment mined at Maj. Op. contract law.” with state must law. We under state permissible was at 441 F.3d (citing Buckley, 889 conclude and interpretations defer to those AEDPA, ... must 696); we “[u]nder Rath- law. no error of state was that there court] the [state consider whether majority’s decision deferring, than the er proper awith is consistent decision Legis- California severely undermines the law in contract of state application determination, enacting sections lature’s agree- plea the interpreting 969.5(a) should prosecutors that and Maj. (quoting atOp. ...” 888 ment. the approval of ability, with the have the 962). Davis, 446 F.3d at to court, complaint after a to amend a allege prior felonies. all (2) already re- state has “[W]here the bargained for— it ceived the benefit

B conviction— and a guilty rem- is the best performance specific 1 defendant, whose edy, unless (heavily) erroneously.relies majority The becomes, instead to ‘electfs] choice it gap bridge to precedent on circuit take his agreement rescind Court’s cases between ” Maj. Op. at there.’ chances froih — U.S.-, Frost, v. Glebe this one. See F.3d at Buckley, 441 (quoting 890 (2014) L.Ed.2d 317 190 135 S.Ct. n.ll). 699 — Smith, curiam); v. U.S. Lopez (per (2014) (3) already per- had “Because Cuero 1, 4, 1 -, L.Ed.2d — formed, de- fairness ‘fundamental Rodgers, curiam); v. Marshall (per to compelled be 1450-51, mands -, U.S. as well.’” .curiam); adhere to the (2013) Parker (per L.Ed.2d 540 Lettice, Cal.Rptr.3d Lettice, decide that issue. Appeal not Court of In California 21. one, appeal similar to this remanded presented with case n. 12. The was court appeal, be- On decide issue. but not this to exer- did instructions superior court with argue cause defendant did to determine whether its discretion cise filing an precluded from prosecutor was complaint. Id. permit the amendment entering information after amended at 873. expressly did appeal court agreement, the Maj. Brown, Op. (quoting at 891 er_”); Rodgers, 133 S.Ct. at 1450-51. It 1162). F.3d at is unwise to think that we slip through will this time around. Take the proposition. first As discussed above, does not Adamson even contain the process,”

words “due so the notion that the “federal process constitutional due Even if the majority properly could rely right is itself defined reference to prin- on our Brown, decisions in Buckley, and ciples of solely state law” comes from Davis, those cases not compel the conclu- Buckley. Similarly, footnote 3 of Adamson sion that the majority reaches. says nothing about state contract law. See Adamson, instance, For 483 U.S. at 6 n. Brown Buckley 107 and ac- S.Ct. (construction knowledged 2680 that and breach there determina- are “two available law”). tions are “matters of state at So the remedies law for the breach of [a] majority’s restriction of agreement: the relevant state withdrawal (i.e., [the] law to contract solely contract) law comes from cir- rescission of the specific per- precedent See, cuit Buckley in and Davis. Buckley, formance.” 699; F.3d at e.g., Maj. Op. at 903 n. 12 (rejecting argu- Brown, 337 F.3d at 1161. choosing In be- 969.5(a) § ment under because that section tween those remedies in Buckley, the en “is irrelevant interpretation to the of a banc “expressed] court no view on what court-approved plea agreement under remedy proper would be in a case with state contract Finally, principles”). no Su- other facts.” at Id. 699 n. 11. preme Court remotely support decisions Cuero’s circumstances are readily distin- the notion specific performance that is re- guishable from those in Brown and Buck- quired when pleaded a defendant has ley. cases, In both we specific ordered guilty and accepted the court has that performance because rescission of the con- plea. Such notions are of our inventions tract “impossible” was under circum- circuit. stances and the petitioners could not “con- Supreme The Court has “repeatedly em- ceivably be returned to the quo status phasized circuit precedent [that] not does Brown, ante.” 1161; 337 F.3d at Buckley, ‘clearly constitute law, established Federal at 699. petitioners F.3d The “paid had as by Supreme determined Court.’” in a coin the state cannot by refund” Frost, 135 at 431 (quoting S.Ct. 28 U.S.C. testifying serving bargained- their and/or 2254(d)(1)). “It therefore cannot form Buckley, sentences. 441 F.3d at 699 the basis for relief habeas under AEDPA.” Brown, 1161). (quoting Here, 337 F.3d at Matthews, 132 at 2155. S.Ct. And “Circuit superior when the permis- court granted precedent cannot ‘refine or sharpen gen- sion to complaint, amend the Cuero had principle eral Supreme jurispru- performed not in way that could not be dence into a legal specific rule that [the Instead, undone. to the extent Cuero had ” Supreme has not Court] announced.’ performed, the “coin” paid fully he was Smith, 135 at 4 (quoting Rodgers, S.Ct. relinquished when his rights refunded trial 1450). 133 S.Ct. at past In the years, three fully Thus, were restored. specific per- caught Court has us three required formance was not by prece- our trying times Frost, evade this rule. See dents rescission possible because still was (“The 135 S.Ct. at Ninth Circuit ac- for Cuero. rule, knowledged this but tried to get past it....”); (“The Smith, 135 at 4 addition, S.Ct. Ninth In Cuero’s case differs from attempted Circuit Davis, evade this barri- Buckley, and Brown because the Puckett, 556 (quoting Maj. at 883 Op. the basis on incarcerated were petitioners 1423). 136,129 at S.Ct. U.S. agreements by plea induced pleas Davis, F.3d at See breached. the state (3)“[P]lea essentially con- are bargains 691-93; at 959-63; 441 F.3d Buckley, (quoting Maj. Op. at tracts.” Thus, those Brown, at 1157-58. 337 F.3d Puckett, U.S. Santobello. closer to much cases were 1423). induced purportedly Here, plea, the initial the state 2254(d)(1) which courts federal “requires Section not and does breached, was withdrawn knew and a state court to focus what incarceration. the basis of Cuero’s form decisions did, state-court to measure to Johnson. much closer case is precedents Cuero’s Supreme Court’s] against [the any liberty of his deprived “was He renders court its the state the time as of fully way. was fundamentally [He] unfair (internal Greene, at 44 decision.” he when likely consequences omitted) aware quotation marks alteration and expect not unfair to it is guilty; pleaded “Obviously, a state- original). (emphasis now.” consequences those to live with him contrary to clear- cannot be court decision 511, 104 S.Ct. 2543. Johnson, at 467 U.S. yet was not Federal law that ly established at Murray, 745 F.3d 997. in existence.” C after the Thus, was issued Puckett because decision, it Appeal’s Court California 1 law” Federal “clearly established was not upon a erroneously majority relies The rendered its the state court at the time numerous opinion Supreme —and majority can- Consequently, the decision. all of other authorities —issued after Puckett. rely on not to Cuero. that related court decisions state — -, Fisher, 132 U.S. v. See Greene number of relies a majority also on The (2011); 38, 44-45, 336 181 L.Ed.2d S.Ct. the state issued after authorities other 170, 182, 131 Pinholster, 563 U.S. v. Cullen principles decision to state court’s (2011); An 1388, 557 L.Ed.2d 179 S.Ct. ap- have should state court law that 1166; 71-72, drade, 123 S.Ct. at 538 U.S. (relying on Doe Maj. at 889 Op. plied. See Woodall, 1706. S.Ct. at 134 see also (9th Harris, 972, 975 Cir. F.3d v. 640 2011)); People on (relying 888 on Puckett id. at relies panel Specifically, the 715, 921, 129, Cal.Rptr.3d 80 States, 44 Cal.4th Segura, 556 U.S. v. United (2009), 649, (2008)); at 888-89 for the fol- id. 1423, 266 P.3d 656 188 173 L.Ed.2d Reynolds v. R.J. To- (relying on lowing propositions: Sateriale (9th Co., 777, Cir. 791 F.3d bacco 697 (1) remedy supply “A must state court In re Timo- 2012)); (relying id. on at for breached N., 157 Cal. Cal.App.4th thy law.” with state contract comports (2013)); n. 14 Puckett, at 904 id. (citing Rptr.3d Maj. Op. at 890 al., 1423).22 et Wayne R. LaFave 137,129 on 5 (relying at S.Ct. U.S. 21.2(e) (4th § ed. Procedure Criminal (2) breach of Cuero’s The purported too, 2015)). reliance, impermissi- This was “undoubtedly a agreement was expected ble, cannot be court rights.” the defendant’s violation of Adamson, support the ma- the authorities cited None of 483 U.S. also cites majority The 22. contention, clearly Davis, establish let alone jority's 446 F.3d at 5 n. Maj. Op. at 890. such contention. proposition. at for this rules of law stated in apply authorities framing Supreme [the precedents Court’s] yet in existence. high at such a level of generality, a lower

federal court could transform even the imaginative most extension of existing case ‘clearly law into law, Even if majority rely could established Federal Puck- ” ett, as determined support weight that case cannot the Supreme Court.’ Jackson, majority’s argument. 133 S.Ct. at 1994 (quoting 28 2254(d)(1)). U.S.C. Such an “approach The Supreme Court in Puckett stated would defeat the substantial deference that agrees defendant to a plea “[w]hen AEDPA requires.” Id. bargain, the Government takes on certain obligations. If obligations those are not majority The only can grant habeas re- met, the defendant is entitled to seek a lief if Supreme Court’s clearly cases remedy, might which some cases be establish that a defendant has a due pro- agreement, of the allowing rescission him cess right specific performance of a plea to take back the consideration he has fur- agreement before entry of judgment. nished, i.e., to plea.” withdraw his 556 U.S. But none of the Court’s cases Clearly, S.Ct. 1423. withdrawal specific addresses that Smith, issue. See of the a constitutionally is permissible 135 S.Ct. at 4. remedy, and Cuero remedy. received that The Puckett remotely Court did not sug- Instead, majority the best the can do is gest that the determination which reme- to point to general Adamsоn for the prop- dy to afford is a matter of state contract osition that “the construction of [a] plea Also, law. the Puckett Court acknowledged agreement and the obligations concomitant that, although “plea bargains are essential- flowing are, therefrom within broad ly contracts,” “the may not analogy hold reasonableness, bounds of matters of state all Id. respects.” This the undermines ma- 3, law.” 483 at U.S. 6 n. 107 S.Ct. 2680. jority’s proposition only that state contract proposition “This is far too abstract law can be used to determine whether clearly establish specific the rule [Cuero] of the complaint permit- amendment was Smith, needs.” 135 at 4. S.Ct. ted. majority

The supposedly treats the door D opened by general Adamson’s proposition as engage freely license to in de novo Finally, majority the erroneously frames determination of what California contract legal at highest issues the gener- levels of requires, law both for the construction ality. Donald, 1377; See 135 S.Ct. at the agreement and the remedy a Smith, 4; 135 Jackson, S.Ct. at Nevada v. — Maj. breach. Op. 887-91. Again, -, howev- 1990, 1994, U.S. 186 er, no California cases establish that (2013) spe- curiam); L.Ed.2d 62 (per City & cf. — performance cific required is when the County Sheehan, San Francisco v. complaint State amends its -, 1765, entry after of a 1775-76, U.S. 191 (2015) (“We plea result, but before judgment. As a L.Ed.2d 856 the repeatedly have majority is forced principles told to frame courts—and the Ninth Circuit in par- California clearly highest ticular —not to define law at the established level of gen- law at a high erality level of in order to generality.” (quoting specific conclude that al-Kidd, performance required. is majority U.S. The Ashcroft (2011))). S.Ct. 179 L.Ed.2d “By rests its decision the very general prin- V must remedy for breach that “the ciple ” by reasons, respectfully the breach.’ I harm caused ‘repair foregoing the For erroneously or- majority that People v. Tosca conclude (quoting Maj. at 890 Op. and court of the district reversal ders Cal.Rptr.3d no, Cal.App.4th Su- In with accordance of the writ. grant (2004)). general proposi Such could law, jurist fair-minded preme Court establish, under not obviously does tion was not induced that Cuero’s conclude law, specific performance that California See prosecutor. by by any promise that in this situation only remedy was there was assuming A. Even Appendix caused harm repair could jurist could a fairminded promise, such breach. was that conclude significance before constitutional without conclusion, ma- final that supply To And, if even there judgment. entry of novo, ipse de on its own purely jority relies constitutionally binding of a a breach were key para- last Note that analysis. dixit any Supreme nothing agreement, con- section its conclusion before graph that the clearly establishes decision to a single citation source only a tains specific to order required court was establish law, does not that citation Thus, court’s deci- the state performance. required here. is performance specific to, nor an unrea- contrary neither sion was on its decision Ultimately, the court’s rests “clearly established application sonable unfair it would 2254(d)(1). be own determinations law.” 28 Federal U.S.C. Maj. performance, specific require reasons, respectfully I foregoing For the performance “specific and that Op. at dissent. the integrity necessary to maintain is A Appendix system,” justice fairness of criminal Felony 14.23These conclusions Guilty/No at 890 n. Maj. Op. Plea of Contest — 8, 2005 Signed December law. or federal by state not dictated are University of the now-defunct per- volume "specific second majority determines The 23. Maj. Op. Valley Review. Law integri- Fernando San necessary maintain is formance "clearly hardly constitute n. 14. These system” at 890 justice criminal ty fairness of the law, determined treatise, Federal as Washington established a 1977 of a the basis 2254(d)(1). decision, 28 U.S.C. Court.” in the and an article Supreme Court B Appendix Hearing of Plea

Transcript 8, 2005

December NELSON, Varney,

James and Elizabeth Plaintiffs-Appellees, America, UNITED STATES Defendant-Appellant. ‍​​​‌​‌​‌‌‌​​​‌​‌​‌​‌​​‌​‌‌​​‌‌‌​​​​‌​​‌​​‌​​​​‌​‍No. 14-1322 United States Court of Appeals, Tenth Circuit.

FILED June

Case Details

Case Name: Michael Cuero v. Matthew Cate

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jun 30, 2016

Citation: 827 F.3d 879

Docket Number: 12-55911

Court Abbreviation: 9th Cir.