Michael Cuero v. Matthew Cate

prosecution Cuero and the reached petition panel rehearing for The plea agreement, they which reduced is rehearing en banc DENIED. writing. plead guilty Cuero would to the IT IS SO ORDERED. felony two substantive counts listed in admit, amended four first WARDLAW, Circuit Judge, with whom exchange, prior convictions. the state SILVERMAN, joins, Judge, Circuit drop the charge would misdemeanor from concurring rehearing denial of en complaint. agreement represented This banc: charge bargain not a bar- only, sentence panel majority opinion for speaks As gain.1 plea agreement, indicated on respectfully suggest itself. I there that is agree particular did not parties sky no fall- need for the dissent’s “the sentence, leaving sentencing to the court ing” rhetoric. This is the where rare case statutory within maximum sentence contrary the state court’s decision was years, months of incarceration. then-clearly established pleaded On December Cuero guilty governing pleas induced plea to the terms of the agreements prosecutor. It with is no During change-of-plea proceed- deal. wonder that a of our active ing, the court agree- reviewed judges simple ap- declined to rehear this ment, signed by defense both counsel peal en banc. prosecutor, and the state noted that had parties left the “sentence for the

I. and that had Court” Cuero made no sen- Diego tencing People.” On October the San deals “with the The court County Attorney’s District Office filed a confirmed that had heard Cuero “the complaint against described,” court] Cuero. [the amended, complaint, charged complete it was his “full and understand- felonies, bodily in- causing great ing two to settle this case” jury to while driving accept agree- another under the and that he “wish[ed] short, Charge bargains arrange- imposed.” 1. ing of an the sentence to "consist[] Id. In whereby prosecutor ment the defendant and charge bargain in a the deal relates to the agree permitted that the defendant should be charges prosecution bring will and to plead guilty a less serious than is plead, will in a which defendant while supported by Wayne the evidence.” R. La- bargain parties agree- sentence reach an al., 21.1(a) (4th Fave et Criminal Procedure prosecution’s sentencing ment over the rec- 2016). bargains ed. "involve[] Sentence an re- ommendation. This distinction is also agreement whereby pleads the defendant ... in Federal flected Rule Criminal Procedure chargef original exchange ] in some promise kind of concern- from judge also ex- into a new him exposing to this case.” The ment years a maximum sentence of 25 addition to to life. On plained “[i]n April the document set forth the the new trial sen- agreement,” rights relinquished by tenced Cuero to 25 to life. constitutional pleading guilty. II. fully performed obligations guilty plea bargain, pleading

under the and Under the Antiterrorism and Effective (“AEDPA”), waiving rights. Penalty his constitutional and other Death Act a habeas petition may granted then moved to dismiss government unless the adjudication “in of the light the misdemeanor count court’s of the claim un un- in plea,” carrying obligation out its own der review “resulted a decision that was to, contrary agreement. pleaded Once Cuero or involved an unreasonable der of, guilty charges application clearly to the relevant and the established Federal drop moved to the misdemean- law” or “resulted a decision that was prosecution charge, judge signed the trial based on an unreasonable determination or “Finding accepting light presented and the facts of the evidence court’s Order” proceeding.” and conclud- in the State court plea Cuero’s and admissions 28 U.S.C. 2254(d). § thereby.” “[Cjlearly “convicted established Federal ing that Cuero was 2254(d)(1) sentencing governing for Janu- law under is the The court scheduled legal principle principles by or set forth ary at the time the state Court sentencing, preparing While Lockyer court renders its decision.” v. An concluded that an- prosecution apparently drade, 63, 71-72, 538 U.S. convictions consti- other of Cuero’s (internal quotation 155 L.Ed.2d prosecutor Though tuted a strike. omitted). marks At the' time of the state (as evi- previously aware of this conviction decision, Supreme court’s by charged the fact she it denced clearly established that was violation of complaint pleaded to which Cuero had process rights Michael Cuero’s due for the deal), pursuant plea she did guilty complaint to amend its prosecution to seek prior conviction initially notice that the guilty plea induced after Cuero entered Notwith- could be counted as a strike. plea agreement State. “to settle standing agreement the written judge’s prosecu trial decision to allow the preexisting this case” and Cuero’s complaint tion to amend the after Cuero conviction, moved prosecution and convicted pleaded guilty pursuant and was to add a second to amend thus violated es felony priors, strike and two additional law, satisfying tablished sentencing drastically increasing Cuero’s requirements. AEDPA’s years, exposure from a maximum of First, holds that years minimum Santobello v. New York months to a of 25 and any significant de- A different “when a rests maximum of 64 to life. of the gree promise than the one who on part it can be said to be signed prosecutor, so that accepted plea agreement consideration, such permitted, over de- of the inducement papers the conviction promise must be fulfilled.” objection, counsel’s fense (1971); Cuero, 262, 495, 30 L.Ed.2d 427 charging document. 92 S.Ct. “amend” the Hayes, original bar- see also Bordenkircher deprived of the benefit of his choice, L.Ed.2d 604 having no other entered gain (“[A] prosecutor’s plea-bargaining promise is constitutionally entitled to ful- promise kept”). must be Santobello stands promise fillment of that a subse- for the that “a proposition criminal defen- quent prosecutorial breach process right dant has a due enforce agreement violates the defendant’s due plea agreement.” terms of his Buckley v. process rights. fully per- Once Cuero Terhune, 2006) promise formed his plead guilty and the (en banc).2 government moved to dismiss his misde- charge, meanor Cuero stood “convicted”

Second, Mabry the Court in v. Johnson pursuant a “Finding signed Order” instructed us that a entered judge. According Mabry, at that plea agreement “implicates point transformed 504, 507-08, the Constitution.” 467 U.S. “executory agreement” from an that did (1984) (“A 2543, 104 S.Ct. “implieate[] the Constitution” to one plea bargain standing alone is without con- that bore' significance” “constitutional be- significance.... stitutional It is the ensu- cause guilty plea Cuero’s and conviction ing guilty plea implicates that the Consti- prosecutor’s were induced agree- Only tution. after respondent pleaded charges. ment to'the reduced 467 U.S. at convicted, guilty was he and it is that 507-08, 104 plea S.Ct. 2543. Cuero’s rested gave conviction which rise to the depriva- promise on a of prosecutor, requiring respondent’s tion of liberty at issue that promise Santobello, to be “fulfilled.” here.”); see also Kercheval v. United at U.S. 92 S.Ct. 495. The States, plea 274 U.S. 47 S.Ct. bargain became a constitutionally enforce- (1927) (“A plea L.Ed. 1009 guilty .... agreement, able and Cuero was entitled to a itself conviction. Like a verdict a jury prosecution have the carry out its end of it is conclusive... nothing court has [T]he the deal. sentence.”). give judgment to do but and My dissenting colleagues incorrectly claim There is absolutely no for the support Mabry that did' not point determine the at supposition dissent’s that whether the Due which a defendant’s process right due to implicated Process Clause is turns on plea agreement enforce his attaches. Yet whether the defendant has been sentenced the central issue in Mabry was whether judgment fact, and final rendered. In process due concerns are implicated when Supreme distinctly Court has held con- accepts prosecution’s defendant offer trary Santobello, to the dissent’s view. In deal or when the defendant the Supreme Court addressed the Due pleads guilty in detrimental reliance on the Process application Clause’s to circum- plea agreement. Mabry, See at stances strikingly similar to Cuero’s. At 507-10, 104 S.Ct. 2543. The core holding of the point prosecution when the breached Mabry is thus that a of guilty induced plea agreement, Santobello’s a judgment by a plea agreement triggers due setting forth the sentence had not been protection. prosecution entered. The promised had

Together, these Supreme Court cases pre-judgment plea agreement that it clearly establish that a defendant whose would not make a sentencing recommenda- guilty plea tion, by prosecutorial was induced and pleaded guilty Santobello in ac- language Buckley 2. ‘clearly This from other cita- established’ Court law and panel majori- tions to circuit in the applied whether the state court that law un- ty opinion Sinclair, guided analysis only reasonably.” our "for the Woods purpose 2014). assessing limited what constitutes Similarly, argument the dissent’s that agreement. that cordance with 258-59, sentencing, original plea agreement 495. At “was not in promise by urging judgment effect at the time was entered” broke its government signifi- maximum available and therefore lacks constitutional adopt court to sentence, begs question. original plea cance year. one Id. was “in effect” when Cuero first Supreme Court held Santobello deal to enforce the and was convicted process right pleaded had due finding To the plea agreement, plea. of his to his extent terms effect,” solely “in breached ceased this was inher- adjudicative government that “the element because the interim the guilty” agreement, leaving must allowed to breach the accepting ent protect rights plead no but to a second time safeguards contain choice defendants, including right have different be convicted promise argument fulfilled when such once more. The dissent’s re- prosecutorial guilty plea. proposition to induce a duces to the that because the promise was used added). (emphasis government plea agree- breached the first Id. at 92 S.Ct. 495 ment, resulting routinely promise pursuant Defendants induced conviction plead guilty plea agreements both implicate process, creating due a did testifying at a code- cooperate by to catch-22 for Cuero and like defendants. his trial. The defendant enters fendant’s According my dissenting colleagues, to court, plea accepted is but plea, right plea agree- to enforce a due fully until after he he is not sentenced prosecu- where the apply ment would judgment a final cooperates, and therefore it. previously tor had not breached immediately According entered. is not analysis, because the defen- the dissent’s III. judg- and final dant has not been convicted entered, similarly holds an alterna- an amendment The dissent ment has not been reality. law untethered to point at that tive view of state charging document pleas en- guilty state law treats constitutionally permissible. Yet California would be plea the inducement of a a defen- tered without it be a clear violation of would differently from pros- agreement with the State process rights to allow the dant’s due plea pursuant those that are entered agreement by seek- ecution to breach law, rights or indictment deal. Under California ing complaint to amend the plea agree- out of the parties al- both to back stage, once the defendant had terminated once Cuero entered his end of the bar- ment ready fully performed agreement parties’ by testifying against plea his codefendant. gain simply convicted. Cuero did cannot be the case that due was It therefore plea that he could withdraw. attach until the de- enter process rights do not factual find- requisite “made the already sentenced and trial court fendant has been Brown v. accepted plea,” ings judgment” “final entered. The dissent’s (9th 2003), 1155, Poole, 1159 of the distinction between discussion “convicted that Cuero was entry judgment and concluded guilty plea and the accepted and (which thereby.” plea was Once carefully omits the fact of convic- convicted, longer he could no entry plea) is thus following tion good cause guilty plea absent to our anal- withdraw his distinction without a difference by the court. and an exercise of discretion ysis. 1024 Similarly, provide § 1018. California precedent plea

Cal. Penal Code Califor 969.5, § while allowing nia Penal agreements interpreted are to be in accor prosecution complaint to amend after the dance with law. state contract See Puckett entry guilty pleas plea agree without 129, States, 137, v. United ments, prosecution not allow the does (2009) (“[P]lea 1423, following a complaint amend its bargains essentially contracts.”); are Peo by prosecutorial prom that was induced 921, ple Segura, v. 44 Cal.4th 80 Cal. a plea agreement. ises embedded In (2008) (“A 649, Rptr.3d P.3d stead, prosecutor “a under California is, plea essence, agreement a contract plea bargain withdraw from between the defendant and the pleads guilty time the defendant before to which the court consents to be bound.” detrimentally relies on that otherwise bar Ames, (quoting People Cal.App.3d v. al., et gain.” 3 B.E. Witkin (1989))). “A Cal.Rptr. 2012) ed. (empha Criminal Law 382 negotiated is a form of added); People sis see also contract, interpreted and it is according (Alvarado), Cal.App.3d 255 general principles.” contract People (1989). Cal.Rptr. 50-51 California law Shelton, Cal.Rptr.3d 37 Cal.4th permit does not amendment the com (2006). 354, 125 P.3d plaint guilty when the entered By seeking to amend after precisely reliance on a be rights, pleaded Cuero waived all his interpretation cause such an run would convicted, prosecution and was breach- afoul process protections of the due promise ed the fundamental made attach under those circumstances. The dis agreed Cuero: The drop State wrong sent is as a matter of therefore thereby expo- limit maximum state as well as constitutional law. years, sure to 14 months incarceration. IV. charge The foundation bargain is that parties agreement the reach an as to what The dissent further misstates California prosecution the will will not requisite remedy law providing'the for the and to what the will plead. defendant See prosecution’s breach. As the dissent ac- 21.1(a). LaFave, definition, supra, By knowledges, the Court has clear- a charge bargain means that ly prosecu- “the the established that construction of [a] strikes, tion will plea charges not later add agreement the concomitant obli- just are, will gations plead the defendant not to flowing therefrom within less reasonableness, charges broad than the agreed-upon bounds of matters and strikes. Adamson, The government’s attempt state law.” Ricketts v. to 483 amend the 1, 2680, n.3, 5 107 97 1 unequivocally L.Ed.2d breached its cen- (1987).Moreover, promise tral both Court and to Cuero.3 argues prose- prosecution 3. The that the legal dissent also forewent additional re- original in investigation cutor made a mistake the search and order secure Third, agreement, prosecu- quick, which could entitle the favorable resolution of this case. First, government's putative regard- tion to rescission. state has never "mistake” ing raised the issue of rescission based on mistake whether Cuero’s conviction consti- case, briefing many years in the this so tuted a strike under California law would Second, argument is waived. there is have no been a mistake not a mistake of fact, prosecutor’s original evidence that permit the state law does California re- promises plea agreement party's under the first arose scission of a contract based on a uni- equally likely interpretation from a application "mistake.” It is lateral mistaken

1025 breached, sought come it breaching is “Where is, remedy to the extent purpose agreement. pro- of the Protection of Cuero’s due by the harm caused possible, repair rights specific cess therefore “leaves per- (internal Buckley, 441 F.3d at 699 remedy.” breach.” formance as the viable omitted) (quoting People quotation Brown, marks 337 at 1161. F.3d Toscano, 340, Cal.App.4th 20 Cal. V. 923, (citing People v. Rptr.3d 1, 409, Kaanehe, Cal.Rptr. 19 Cal.3d Finally, panel majority opinion has (1977))). 1028, P.2d 1036-37 implications my none of the broader dis specific performance calls for “when senting colleagues would ascribe to it. The expectations implement will the reasonable dynamic opinion existing does alter the binding without the trial parties prosecutor between the and the defendant. disposition to a that he or she con already constitutionally Prosecutors are all the circum siders unsuitable under required uphold plea agree their end of Mancheno, People v. 32 Cal.3d stances.” following entry ments Cal.Rptr. 654 P.2d conviction, Santobello, see 404 U.S. at (1982). [alleged] the breach is a “When proposition 92 S.Ct. 495 — a that no by comply refusal fairly surprising. par one can find Neither enforcement would agreement, specific ty binding plea agreement permit directing prosecu consist of an order on that renege agreement ted because grant bargain tor to fulfill the and will be it on wrong he have entered possibility there is a substantial ed where If assumptions. prosecution is troubled completely will specific performance inability binding plea to breach a its prosecutor’s repair the harm caused if further information about a (In re Tim People Timothy breach.” N. history light, comes to defendant’s N.), othy Cal.App.4th Cal. can and do minimize provisions contractual (2013) (alteration origi Rptr.3d Here, example, original that risk. omitted) (internal nal) quotation marks if provided could have Kaanehe, Cal.Rptr. that one of the the state later learned 1036). P.2d strike, qualified as a charged priors sentencing Here, im- court could treat it as such for remedy available to the sole contrary my dissenting purposes. And expectations reasonable plement Cuero’s contention, panel majority “Permitting” colleagues’ specific performance. was apply where the defen opinion does not to withdraw his identity prior misrepresents his constitutionally defec- dant plead guilty to thereby fraudulently in convictions and complaint, the alternative tive amended government to enter remedy repair did not the harm duces proposed, . breach; instead, not reflect his full that does by the it allowed

caused case, history. govern- In this prosecution precise to achieve the out- §§ to all the information ernment had access of the law. See Cal. Civ. Code 1689(b)(1). per- Finally, if the standard necessary even conclude that Cuero’s second strike, mitting mis- rescission for certain unilateral prior and its conviction constituted here, applied of fact rescission is takes entering plea agree- failure to do so before party mistake of fact was available to a whose exclusively the result of its own ment was negligence, Cal. Civ. the result of its own see calculated, though negligence at best or government's § late as was incorrect, decision at worst. gov- "discovery” of Cuero's strike here: adequate three-judge ment had access to accurate and case.1 The panel decision here information about Cuero’s convic- is not on based established federal original plea agree- tions at time of the as the Court has never held merely neglected ment to reflect his that the Due Process Clause precludes history original full criminal amend- post-plea, pre-judgment amendments to a ed'complaint. complaint. Nor has ever ordered the reinstatement anof al- by abstracting highest

It is leged plea agreement that was not in ef- “plea noting agreements play level— judgment fect at time was entered. part justice an instrumental our criminal an judiciary Such exercise of raw federal system” my dissenting colleagues —that power, though, exactly what the Antiter- impedes this case can claim that the ad- rorism and Penalty Effective Death Act justice in ministration of criminal Califor- (“AEDPA”), § prohibits. U.S.C. I disputes plea agreements nia. No one respectfully dissent from our refusal component are admin- an “essential rehear this case en banc. Santobello, justice.” istration of majority opinion 92 S.Ct. 495. Yet the way ability in no interferes with the I. BACKGROUND plea negotiations state to conduct and en- On October Michael Cuero' Indeed, plea agreements. ter it is the dis- (“Cuero”) crashed his vehicle Jeffrey into interpretation sent’s of the Due Process Feldman, who standing was on the side of Clause and California Penal Code . parked the road next to his pickup truck. enabling prosecution 969.5—as time, At the Cuero did not have a valid charge bargains already back out of ac- license, driver’s was under the influence of cepted by fully performed by the court and methamphetamine, and was on pa- active the defendant —that would undermine the for prior drug role violations. Although the stability system bargaining injuries record is silent as to the rendering bargains illusory such and un- crash, sustained from the he maintained trustworthy. If a could unilater- physical ability wherewithal and to dis- ally renege plea bargain on a that had pose of pistol the 9mm semiautomatic accepted by fully been the court per- he, felon, unlawfully as a was possessing. defendant, formed defendants would Feldman, hand, on the other was not so likely lose faith in the bargaining fortunate. He had to be airlifted to the system rationally require and would more center, nearest trauma where he immedi- promises prosecution substantial from the ately emergency underwent surgery and participation. to secure their put support. Among on life other things, Feldman suffered a severe brain CALLAHAN, Judge, Circuit with whom injury, fractures to all the bones O’SCANNLAIN, TALLMAN, BYBEE, face, and a ruptured spleen. Feldman’s BEA, SMITH, IKUTA, M. Circuit prognosis was grim treating physi- and his Judges, join, dissenting from the denial of cians believed he would never be able to rehearing en banc: again. work roughly many For the second time in weeks, summary we invite days crash, reversal A few after the the People in a state court habeas filed initial complaint its criminal against 2016), denied, 1. reh’g The other case we refused to rehear en banc Cir. en banc 849 F.3d (9th Hardy (9th 2016). Chappell, was 832 F.3d 1128 2016 WL Cir. 28, 2005, months. It is not clear whether People Cuero’s On October Cuero. alleg- complaint, filed an amended was on an based with the (1) bodily inflicted serious that Cuero: ing People; there is evidence that it was not.3 driving while under the injury to Feldman evidence, though, There is no that he drugs of alcohol or influence People agreed particular to recommend a driving under ten did so within ability sentence or to waive its to later (2) conviction, felony; pos- the influence complaint charge amend the to add a felon, felony; as a sessed a firearm strike. under the influence of a controlled was In preparing sentencing memoran- substance, People a misdemeanor. The also upon investigation, dum and further prior had served four alleged prosecuting attorney discovered that Cue- prior his terms2 and that one of prison felony ro had two additional serious convic- burglary residential convictions—for —con- and an assault-with-a-deadly-weapon tions stituted a strike. yet conviction that constituted another pleaded December On January strike.4 On bodily injury inflicting serious guilty to 969.5,5 Penal section California the influence and to driving under while People filed a motion to amend the crimi- a firearm. Addition- possession unlawful complaint felony nal to add the two serious had admitted that he served ally, Cuero allege convictions and that Cuero’s assault- prison terms and that his resi- prior four with-a-deadly weapon conviction was an burglary conviction was a strike. dential challenged the additional strike.6 Cuero Superior Following plea, Cuero’s amendment, arguing motion to dismiss granted Court, exercising the discretion afforded to light count. In remaining misdemeanor 969.5, section admissions, California Penal Code maxi- pleas deny request because it was exposure years, should punitive mum term, prison Whenever it shall be discovered that prior each an additional 2. For prison one-year, complaint term is added. pending consecutive to which a 667.5(b). § See Cal. Penal Code made under Section 859a does not has been charge prior the defen- all felonies of which instance, response form's For either in this state dant has been convicted question he had “been induced to of whether elsewhere, complaint may be forth- representa plea by any promise or [his] enter prior convic- with amended to kind,” "STC-NO tion of Cuero wrote: amendments tion or convictions and the Cate, Cuero v. DEALS THE PEOPLE.” See W/ upon be made order of the and shall 2016) (O’Scann thereupon defendant shall court. The lain, J., dissenting). judge's Based on the arraigned court to which the before the plea hearing, ap at the "STC” statements been certified and shall be has pears for “sentence for the court.” to stand asked whether he or she has suffered J., (O’Scannlain, dissenting). n.7 Id. at 901 prior If the defendant enters conviction. 4. Under California whether an assault- denial, be entered in his or her answer shall with-a-deadly-weapon constitutes a conviction minutes of the court. The refusal underlying conviction's strike is based on the equivalent to a deni- defendant to answer Winters, See, People e.g., 93 Cal. facts. prior that he or she has suffered al Cal.Rptr.2d App.4th conviction. assault-with-a-deadly- (noting that all strike). weapon constitute a convictions felony” conviction adds 6.Each “serious five-year to a defendant’s sen- enhancement 969.5(a).pro- Penal Code 5. section 667(a)(1). tence. Cal. Penal Code vides: untimely prejudice and would him. Howev- stipulated TAC and 25-years-to-life er, Cuero did not contend that the request- sentence. ed amendment violated the Due Process sentencing The hearing was on held Clause or California contract law. April At point 2006. no leading up to it Following hearing February on did Cuero attempt to withdraw from his Superior granted re- plea or ask the Superior Court to exercise quest. Superior The Court based its deci- its discretion and sentence him to less than sion on section language 969.5’s and its life, years which he could have done.7 existing belief that case law demonstrated Superior Court sentenced Cuero to that an in exposure increase due to an what it had said it years would—25 to life. amendment does not impact a defendant’s On direct appeal, Cuero’s counsel filed a rights. substantial announcing After its de- Wende brief8 and asked the California cision, Superior Court asked Cuero if Court of Appeal to review the record for he wished to plea. withdraw his Cuero error. Specifically, counsel directed the ap- responded by requesting time to make his pellate court’s attention to the “possible determination, which Superior arguable but not issue[ ]” “whether the Thereafter, him. afforded People filed [People’s] amendment violated the terms a second amended complaint, which raised the earlier in violation possible Cuero’s exposure to a sentence of process.” of due appellate court af- to life. forded Cuero the opportunity to sep- file a during Sometime the next month and a brief, arate but Cuero chose not to do so. half, Cuero reached an with the After “reviewing] record,” the entire on People. In exchange for pleading March Appeal the Court of found guilty inflicting great bodily injury to there reasonably was “no arguable driving Feldman while under the influence appellate issue” and Superior affirmed the drug admitting the alleged two Court. strikes,

prior People agreed to with- Thereafter, petitioned for habeas draw the second amended complaint and Court, relief in Superior California Cuero with inflicting great Court of Appeal, and bodily injury to Feldman driving while un- Court, all of which denied request Cuero’s der the a drug influence of and having two for relief. Cuero then filed a federal habeas strikes, prior which had the effect of dra- petition Court, in the District which was matically reducing exposure. also denied and serves as the basis for this At the change-of-plea hearing held on appeal. March People filed a third (“TAC”) amended complaint reflecting II. DISCUSSION changes. these Cuero withdrew his previ- ous pleaded guilty to the A federal petition habeas challenging single charge. TAC’s Cuero also custody admitted shall be denied “unless the the two strikes contained in the adjudication [state court’s] of the claim[] (Rome People brief, As noted in Wende, 8. A Wende People named after ro), 497, 504, 529-30, 13 Cal.4th Cal.Rptr. Cal. 25 Cal.3d 600 P.2d Rptr.2d (1996), pursuant (1979), 917 P.2d 628 is similar to a brief filed in 1385(a), California Penal Code section a trial California, federal court to Anders v. court dismiss a strike if it is in further justice. (1967). ance of to, contrary Supreme States,” the of in a decision that was Court the United resulted of, application majority gives involved an unreasonable the Due Process Clause law, Federal as deter clearly established an unprecedented interpre- overbroad and by Supreme Court the United mined upon just tation that intrudes and or- of 2254(d)(1) (emphasis 28 U.S.C. States.” derly justice of administration added). ‘contrary “A to’ Su decision and other states within the Ninth Circuit. where ‘the state preme precedent Court Superior approval A. The Court’s opposite at a conclusion

court arrives People’s requested amend- Supreme that reached Court on contrary ment was neither to nor of law or if the state court decides question application an unreasonable differently Supreme a case than the Court clearly Supreme established materially indistinguishable has on set of ” precedent. Harrington, v. 829 F.3d facts.’ Jones (9th 2016) (alterations Cir. First, Supreme Court has never held omitted) v. original Williams prevents the Due Process Clause 362, 413, Taylor, 529 120 S.Ct. U.S. amending state from a criminal (2000)). “A state court Second, complaint post-plea, pre-judgment. unreasonably applies clearly established 969.5, 1009, California Penal sections gov if it ‘identifies the correct federal law specifically post-plea and 1192.5 allow for erning legal unreasonably applies rule but complaints, amendments of and no Califor- particular pris it to the facts of the state nia court has limited of the section’s ” (alterations original case.’ Id. oner’s application to instances where a defendant — omitted) Woodall, v. (quoting White Third, pleaded agreement. an without —, 134 S.Ct. Supreme specif- Court has never held that (2014)). court decisions L.Ed.2d 698 State performance only remedy ic is the for al- “against Supreme are to be measured [the leged of the Due Process violations Clause precedents as ‘the time the Court’s] during plea bargaining process or that ” state court renders its decision.’ Greene courts, appellate opposed federal Fisher, 34, 132 v. 565 U.S. courts, remedy should fashion (2011) (emphasis original) L.Ed.2d 336 fact, In any such violation. has held Andrade, (quoting Lockyer opposite. 71-72, 1166, 155 L.Ed.2d 144 (2003)). precedent 1. does clearly establish majority finds that post-plea, prejudgment amendment People’s request approval Court’s implicates the Due Process Clause. an unrea- contrary amend was both claims that “a application sonable established Cate, between the state and the law.9 827 F.3d seals deal 2016). defendant, reaching In con- and vests the defendant with this erroneous clusion, right to enforce the terms of majority goes beyond due Cuero, plea agreement.” 827 F.3d scope of what (internal omitted). interpret “clearly quotation than marks instructs. Rather majority’s Federal as determined But —as the citation established of counsel light finding that relief was dress Cuero's ineffective assistance of its habeas Cuero, People’s court-ap- warranted based on at 883 n.4. claim. See amendment, proved majority did not ad- Circuit cases reveals—the by three Ninth Su mained bound he had preme applied has never Due government, reached with the despite the a plea agreement Process Clause to government’s breach. Santobello thus does judgment not in effect at the time was was specific not address the question this Thus, assuming even entered.10 Cue- case—does the Due apply Process Clause pursuant ro’s initial to a alleged plea to an agreement that is with- agreement, there is no basis con judgment drawn before is entered —and that the clude Court acted con therefore cannot serve aas basis for habe- trary unreasonably applied clearly to or Lopez, as relief. See 135 S.Ct. at Supreme precedent established by Johnson, Mabry 504, v. 104 exercising statutorily-based authority its 2543, (1984), 81 L.Ed.2d 437 over- approving People’s request part by States, ruled in Puckett v. United See, complaint. amend the e.g., Lopez v. — 129, 1423, 556 U.S. 129 S.Ct. 173 L.Ed.2d Smith, U.S.—, 135 S.Ct. (2009), also cannot serve as a basis for (2014) curiam) (per (stating L.Ed.2d There, habeas relief. the Supreme Court precedent must address “the specific ques case”). stated: presented by tion th[e] conclusion, its states A plea bargain standing alone is without that, “[b]y allowing the prosecution to significance; constitutional in itself it is a the agreement, reneging breach on the which, executory agreement mere until promise that plea, induced Cuero’s judgment court, embodied in the aof clearly state court violated federal law es deprive does not liberty an accused of by Supreme tablished Court in Santo any other constitutionally protected in- York, bello New [v. 92 S.Ct. It ensuing guilty terest. is the plea that (1971) Cuero, ].” implicates the Only Constitution. after However, F.3d at 891. Santobello is respondent pleaded guilty was he con- There,

.distinguishable. defendant victed, and it is that conviction which agreed plead guilty exchange for the gave rise to deprivation of respon- government’s explicit promise not to make liberty dent’s at issue here. a sentence recommendation. 404 U.S. at 507-08, 467 U.S. at 104 S.Ct. 2543 (empha Following 92 S.Ct. 495. the Santobello added) (footnote omitted). sis Mabry thus guilty plea, defendant’s though, gov points identifies two at which process due parties’ agreement ernment-violated the rights may possibly attach in this asking for the context: possible maximum sen (1) entry plea, of a entry tence. Id. at Significant S.Ct. 495. Cuero, judgment. ly, Notably, though, Mabry unlike did not defendant Santo actually bello was never decide the issue opportunity gov afforded the because the back of the parties’ agreement out ernment had withdrawn plea agree plea. withdraw his Id. at ment sought 92 S.Ct. 495. the defendant to enforce be Therefore, at judgment the time fore was en the defendant entered a tered, 506, 104 the defendant in Santobello re- to it. Id. at S.Ct. 2543. language opin 10. While the preme in some of our "repeatedly emphasized Court has conclusion, may support majority's ions [that] circuit does not constitute ours, Supreme precedent, is the Court’s law, clearly established Federal as determined See, Frost, e.g., that matters here. Glebev. (internal quotation Court” —, —U.S 190 L.Ed.2d omitted)). marks curiam) (per (noting that the Su- thirty-plus Mabry, In the since Under California “[i]n case, judgment Court has not addressed the is rendered when the trial application pre orally pronounces Due Process Clause’s court sentence.” People result, judgment plea agreement. Karaman, As a n.9, Cal.4th “precise contours” defendant’s due Cal.Rptr.2d (1992); 842 P.2d 100 ac- rights in the con People Mendoza, cord 171 Cal.App.4th White, 1142, 1150, “remain at (2009). text unclear.” 134 S.Ct. 90 Cal.Rptr.3d 315 75-76, (quoting Therefore, Lockyer, 538 U.S. at while a guilty plea is certainly a 1166). Therefore, stop along at an absolute path judgment, it is not minimum, disagree destination, reasonable minds could the final as it does not include See, about whether the Due Process a pronouncement. Clause sentence e.g., Cal. pre-judgment plea agreements, par § covers that, Penal 1191 (stating “in a ticularly ease, those that have been felony withdrawn plea, after a ... the court are not in judg or effect the time of shall a appoint time pronouncing for judg- See, ment”). Richter, Here, e.g., Harrington ment. that, it is undisputed at the People 131 S.Ct. 178 L.Ed.2d time the sought and per- received (2011) (“A court’s determination mission to complaint, amend its no sen- precludes announced, that a claim merit and, lacks habeas tence had been thus, no long jurists so judgment relief as ‘fairminded could had result, been entered. As a disagree’ on the correctness of the state if even there was an agreement initial Yarborough court’s decision.” People’s and the it, amendment violated a Alvarado, judge reasonable could find that the state (2004))). 2140, 158 L.Ed.2d 938 here contrary to, courts did not act or unreasonably apply, clearly established indication, Contrary majority’s to- the allowing federal the amendment significant there is a difference between no because Court case ap- has entry guilty plea entry of plied Due Process Clause to a situation a judgment. perfunctory step, Far from presented like the one here. entry judgment signifi- of constitutes prosecution. Among cant milestone in a The fact that Court or possible things, entry judg- other Appeal might California Court of have ex- dramatically ment reduces a defendant’s the Due tended Process Clause to cover ability alleged withdraw initial does right exercise his constitutional to trial. that mean their failure to do so short, § See Cal. Penal Code 1018.11In to an application amounts unreasonable entry See, White, of judgment provides a that finality e.g., federal law. 134 S.Ct. at not exist simply (stating does when defendant that AEDPA “does not re- entered, to plead. judgment quire offers [the Until state courts to extend may the defendant withdraw his license federal Court’s] trial withdraw approval. courts to treat the failure to do so as error”). This distinction further rea- Simply put, Supreme prece- confirms the sonableness of the that Pro- “squarely belief the Due dent does not that establish[]” judgment applies cess Clause attaches after Process to pre- Due Clause Therefore, judgment plea agreements. is entered. Id. 11(e); 32(d); entry imposition sentence or Crim. P. Haw. R. P. Idaho Penal 33(c); judgment R. has a similar effect in other states Crim. Nev. Rev. Stat. Ann. See, 176.165; e.g., § § within Ninth Circuit. R. Or. Rev. 135.365. Alaska Stat. Ann. insufficiency, stage defect or estab- it is “so obvious Also, that there applies proceedings.” [this ease] lished Penal Code rule that, disagreement on provides following fairminded could be no section 1192.5 under question,” is needed relief plea, a trial court re- defendant’s (internal quotation 1706-07 AEDPA. Id. at ability tains the to “withdraw its approval omitted). marks plea] further light consider- [of to pleading, ation of the matter.” Prior post-plea, pre-judgment 2. The ability. defendant is made aware of this criminal com- amendment See Cal. 1192.5. Penal Code plaint not violate the Due Pro- did No California state court has held cess Clause. 969.5,1009, and 1192.5 inappli sections are was an arguendo, there Assuming, „a pleads cable where defendant cases and that the Due initial plea to a reached with it, applied to there is no Clause Process Lettice, People. People the v. 221 See Cal. process “[T]he due violation. construction n.12, App.4th Cal.Rptr.3d 163 150 862 plea and the concomitant of [a] (“Neither (2013) Valladoli, v. [People the are, therefrom obligations flowing within Cal.Rptr.2d 13 Cal.4th 54 918 reasonableness, matters broad of bounds (1996),]court, any P.2d 999 nor other court Adamson, Ricketts v. 483 of law.” state aware, which has of we are considered 1, n.3, 107 S.Ct. 97 L.Ed.2d 1 U.S. may whether file an People amended (1987). reiterate, To California Penal having after into a information entered 969.5(a) states, part: section relevant case.”). plea to resolve the it shall be discovered that a Whenever Therefore, on the sections’ lan plain based complaint to which a pending guage, may a be complaint post amended made under 859a guilty has been Section if People approv seek receive charge prior all does not felonies al from to do so. People the trial court Cf. has been which the defendant convicted (Alvarado), Superior Court 207 Cal. elsewhere, either in this state or App.3d Cal.Rptr. complaint may be forthwith amended to (noting that trial courts have the discretion charge prior conviction or convic- “allege complaint prior to amend a a tions and the amendments and shall felony conviction after has upon order of the court.12 made been the accused [under entered sec Penal Additionally, California Code section 969.5]”). tion trial “may court declares Here, order an amendment an in- California’s amendment permit dictment, information, People was filed motion to accusation or the followed: amend, complaint, any held filing Superior hearing of an amended for Court support. Nothing existing suggests case the last sentence footnote law that, strike, event, apply majority the state that section 969.5 does not to a "[i]n states is, all, Further, felony. charge prior which did 'all felonies which after the Cali- [Cuero] original Appeal in the com- fornia has ha[d] been convicted' Court of affirmed amend- plaint charge simply felo- ments add under did Cuero’s strikes California Penal —it Cuero, 969a, ny employs conviction as a strike.” Code section which the same assault (alterations original). F.3d Pre- “does all at 889 n.12 felonies of which sumably, imply language. was convicted” this statement intended to defendant has been See, Sandoval, e.g., applicable People Cal.App.4th section 969.5 is not in this Thus, 132-34, (2006). good majority Cal.Rptr.3d case. is a reason There clearly applies here. buried statement in a footnote—it has no section 969.5 this motion, and, after determining agreements. on the See id. at 888 (collecting requested cases). un- amendment would not “Generally speaking,” though, has fairly prejudice rights, substantial See, no place the AEDPA lexicon. e.g., Superior granted People’s (“We Lopez, 135 S.Ct. at 4 have before request and an amended cautioned the lower courts—and the Ninth Furthermore, al- filed. Circuit in particular against ‘framing our — plea, lowed to withdraw his initial precedents such a high generali level of ” purportedly which was based an on earlier — ty.’ Jackson, Nevada v. result, plea agreement. As —, amendment law consistent curiam))). (per The precedent relied and did not violate the Due Process upon under AEDPA must address “the Clause. specific question presented by case,” this Recognizing pro- that California criminal id. which here is: does state contract law they them get cedure cannot to where prosecutor’s statutory eliminate ability to go, want to shifts its focus amend a criminal complaint after a defen Cuero, California contract law. See allegedly pleaded pursuant dant has However, majority’s F.3d 885-91. plea agreement, judgment but before has body reliance on this of law is misplaced been entered. No Court or Cali first, two the Supreme reasons: fornia appellate court answers phrase never the has construed “matters question. this just of state law” to state mean “matters of Undeterred, majority turns to our law”; second, had, in contract and even if it precedent, specifically, own Davis v. case, Superior this Court’s approval (9th Woodford, 2006), 446 F.3d 957 Cir. People’s request to amend is not clear- (9th Buckley Terhune, and v. 441 F.3d 688 ly body inconsistent with of law.13 (en 2006) banc). Cuero, Cir. See Supreme The i. has said Court never But Buckley at 888-89. Davis and were “matters state law” means the Superior approved decided after Court law,” “matters of state contract People’s amendment and are not Su thus, Superior Court not preme opinions. Supreme Court As the woodenly apply bound to California “[cjircuit clear, made Court has contract law. general cannot or sharpen princi ‘refine a ple jurisprudence into a majority the Superior takes legal specific rule that Supreme] [the to task for not explicitly discussing ” Lopez, Court has announced.’ interplay not between California Penal 4 (quoting Rodgers, S.Ct. at Marshall contract Code and California law. Id. — —, U.S. S.Ct. why But it? 889-90. would Cuero did (2013) curiam)). Thus, L.Ed.2d 540 any (per arguments raise under California con- Court was not bound to apply tract law and neither law, rather, appellate woodenly state contract but nor California courts have instructs, required its consideration. It is true that a Ricketts could consider rele Ricketts, n.3, law. number of cases have stated that vant state 483 U.S. at 5 Califor- applies contract law 2680. generally nia S.Ct. addition, 1981); corpus jurisdic- In federal habeas F.2d 28 U.S.C. alleged does 2254(a). tion not extend violations § See, Morris, e.g., state law. Guzman omitted) original Mor- of the teration approval Superior Court’s Airlines, Inc., consistent to amend is v. Trans World request ales

People’s First, language sec- law. 119 L.Ed.2d with state U.S. 969.5, and 1192.5 is broad Mancari, (1992))); tions Morton v. nor Supreme Court the California neither 535, 550-51, Appeal has nar- Court of the California (“Where intention there is no clear Second, existing California law it. rowed otherwise, specific will not be a statute felony- strong repeat desire that evinces one, general controlled or nullified “longer prison sentences offenders receive enactment.”). priority regardless of Cal. Penal Code greater punishment.” 667(b). Third, strongly law § California role if contract law had a ii. Even dismissing or prosecutors disfavors analysis, play in a reasonable strikes, allow- of a defendant’s charging all the Peo- could conclude occur when such action to ing for permissible. ple’s amendment was justice” or when furtherance of “in the prove the evidence to there is insufficient stated, Although not it is clear that 667(f)(1).14 § Cal. Penal Code strike. See essentially viewed 969.5, light of sections alleged amendment as rescission 1192.5, contract law is not con plea agreement. Under California initial case has ever trolling. Again, no California party to a contract rescind ap state contract law limits held that given party’s contract if the consent was 969.5, plication of sections by mistake.15 See Cal. Civ. Code 1192.5,Furthermore, extent sections 1689(b)(1). rescission, To claim the mis- 969.5, and 1192.5 are inconsistent must show that: party taken allowing state contract regarding made a mistake ba- [he] complaint, amend the stat People to those upon which made assumption [he] sic govern should because utory provisions (2) contract; a the mistake has mate- directly more situation they speak exchange of upon agreed rial effect See, e.g., Court. faced [him]; that is adverse to performances Hotel, v. Amal Gateway LLC RadLAX (3) the risk of the does bear [he] Bank, 639, 132 S.Ct. 566 U.S. gamated mistake; of the mis- (2012) (“It the effect 2071, 2065, 967 is a 182 L.Ed.2d that take is such enforcement statutory construction commonplace (al- contract would be unconscionable. specific governs general.” that the 667(f) briefing People's did not address how specifically refers to "seri- 15. The 14. Section felony How- violent convictions.” with state con- ous ever, its amendment is consistent and/or clear, subsequent Nonetheless, as case makes indepen- we have an tract law. felony conviction” un- violent "serious and/or duty arguments “what or theories dent to ask See, 667(f) constitutes strike. der section supported[ ] ... could have the state court's Acosta, 105, 111, 124 e.g., People v. 29 Cal.4th decision; possi- and then ask whether it is [] 435, (2002) ("Each Cal.Rptr.2d 52 P.3d 624 jurists disagree could ble fairminded felony’ ... is either a 'serious of these crimes arguments or theories are inconsistent those felony’ is a a 'violent ... and therefore holding prior decision of th[e] with the law.”). Because under the Three Strikes strike Harrington, at [Supreme] Court.” interchangeable, and for the the terms are 102, 131 S.Ct. 770. clarity, this dissental uses the word sake of “strike,” opposed phrase to the "serious conviction,” felony when dis- violent and/or 667(f). cussing section

1035 Corp., Donovan v. RRL 26 him paid Cal.4th Cuero had could be refunded to Cal.Rptr.2d 109 27 702 P.3d in full. differently, Stated initial (2001). Here, there is no doubt could be parties and the returned unwound People would not have entered into the to the exact same position they occupied alleged initial prior entered, being as the had it known that a second conviction prosecutor had argued at the hearing on Further, constituted a strike. if the Peo Thus, motion amend. this case is ple’s uncorrected, mistake remained defendant, unlike those where years would have received windfall—14 plea agreement, against testifies an facing rather than a maximum of 64 other trial cooperates with law en Therefore, to life. factors one and two are meaningful way. forcement some As a result, satisfied. a reasonable judge could conclude alleged that the rescission here per A reasonable could also conclude See, e.g., missible. NMSBPCSLDHB v. factors four three and were satisfied. As Fresno, County Cal.App.4th 954, recently noted the California 959-60, Cal.Rptr.3d (stating Court, Appeal in v. Superior Amin “requir[es] [party] rescission each Cal.App.4th Cal.Rptr.3d return whatever consideration has been (2015), is a “there dearth of cases in received” Imperial Cas. & Indem. regarding California” whether Sogomonian, Co. v. Cal.App.3d agreement is rescindable to a prosecu- due (1988))). Cal.Rptr. majority tor’s unilateral mistake. While the in Amin that the People concluded failed if process rights 3. Even Cuero’s due to establish that factors four three and violated, Supreme prece- were satisfied, were see 237 Cal.App.4th specific require per- does dent 1400-07, Cal.Rptr.3d the dissent formance. 1411-15, disagreed, Cal.Rptr.3d id. at 870. For purposes appeal, Cuero’s Amin concludes that the “Superi- First, significant two reasons. or Court also unreasonably applied clearly that, shows even as of by failing established federal law to order conclusively courts had not decided how specific performance of [initial] applied Cuero, mistake-of-fact rescission plea agreement.” 827 F.3d at 890. Second, plea agreement context. the dis- Again, this conclusion no support finds the majority between and dis- existing Supreme fact, precedent. sent that judges clearly demonstrates reasonable it is the Supreme inconsistent with issue, disagree could the about even Court’s declaration that the decision of after the of conclusion Cuero’s state court to grant specific per- whether a defendant Thus, proceedings. the state courts here or to allow him formance to withdraw from reasonably could have found that the al- his is decision left to the “dis- best leged initial be re- .court, could the cretion of which is in a scinded. better to position decide relief is [what ' Santobello, warranted].” 404 U.S. at Despite majority’s the intimation to the 92 S.Ct. 495. contrary, alleged the rescission in this case point did not past being wrong occur of no return. In to on the addition People ignores still be disgorged allowing could the fact that placed benefit of his received—Cuero’s waiver Cuero to withdraw his him in'. right proverbial to “coin” same in position trial —and the exact he was to Further, determination, plea agree making after this alleged initial

entering into ment, this case from distinguishes Superior Court afforded Cuero the which Cuero, majority. by the See plea, those cited from his opportunity to withdraw contract law F.3d at 890-91.16 advantage. Nothing which he took this non-breaching that merely requires inconsistent with sequence of events is Here, to made whole. party be state law or established plea agreement, initial Cuero alleged result, As a there is no due precedent. trial, he received gave up right but violation, Superior Court did Superior when the right back err, not and Cuero is not entitled habe- amend. People’s request approved as relief. deprived It is true sentence, unlawfully generous majority’s opinion

receiving an B. The intrudes no moment. California law just orderly this is of upon but admin- that, under these not establish did justice istration of in California circumstances, a entitled to defendant is possibly states within other have never re-acquire something he should the Ninth Circuit. instead, place; the first it indicat gotten in goes saying preventing “It without Alvarado, just opposite. See ed much more the dealing crime is (“Al Cal.Rptr. Cal.App.3d than it is of the business the States ineligibility prejudicial though probation Government, and that [federal Federal that Alvarado would rather it in the sense lightly not should construe courts] alleged, allegation here does upon Constitution so as intrude to Alvarado’s substantial prejudice cause justice by administration of the individual fact, merely In the amendment rights. California, States.” Medina v. 505 U.S. position in the he should places Alvarado 112 S.Ct. arraign in at the time of his have been (1992) (citation omitted) (quoting Patter- municipal court had he not used ment York, son v. New 432 U.S. an an alias and entered immediate (1977)). 2319, 53 L.Ed.2d 281 Accord- 859a.”). section A reasonable plea under ingly, federal courts use the Due Pro- might appro well conclude that the prescribed cess Clause override state’s remedy this case was to allow priate procedure only proce- when the to withdraw from his initial justice principle dure “offends some so People perform than order the rather in the traditions and rooted conscience alleged plea agree initial specifically people our as to be ranked as fundamen- ment. Patterson, tal.” Id. 432 U.S. at sum, motion to following 2319). 202, 97 S.Ct. complaint, amend the Today, plea agreements play an instru- hearing, opposi- held a considered Cuero’s justice motion, and, part system. mental our criminal tion exercising its stat- Santobello, utorily that See given authority, determined 495; granted. Frye, motion should be see also Missouri v. 2003) majority (serving cited 337 F.3d 1155 as a 16. The three cases specific performance during which was ordered in- inmate her first few model who, N., volved defendants in reliance on their confinement); Timothy In re 216 Cal. plea agreements, took actions that could not (2013) (suc App.4th Cal.Rptr.3d (testify- Buckley, be undone. See 441 F.3d 688 cessfully completing probation). Poole, codefendants); ing against Brown received, L.Ed.2d plete S.Ct. information is potentially (2012) (“Ninety-seven of percent federal freeing dangerous taking individuals and percent trial, ninety-four convictions and they to cases otherwise would not. state convictions are the of guilty result While Supreme precedent Court some- pleas.”). majority appears blind to the times creates Hobson-like for choices law practical implications ruling. of its Due to enforcement personnel, it has not done so concerns, others, speedy trial as well particular in this context and one should plea negotiations often begin immediately not be within prosecutors foisted onto may a prosecutor have less-than-com Ninth Circuit. plete In hopes or unclear information. record, covering his sordid defendant III. CONCLUSION

may use an alias or be than forthcom less Further, ing history. about his criminal If past is any behavior of fu- indication FBI, reports from state and local law behavior, ture Michael Cuero on is well authorities, presentence enforcement way serving to a life sentence on an install- may investigators not be available. plan. ment Unfortunately, each new in- Cf. Cal.App.4th Court, Thompson likely stallment means that has vic- 156, 110 Cal.Rptr.2d 89 yet life, person timized another whose like (“At preliminary hearing, the time Feldman’s, Jeffrey will never be the same. prior may the defendant’s convictions injustice The true here is that will fully especially if People, known not have to serve the sentence has defendant used one more Superior legally imposed. In failing aliases, or has suffered convictions other follow Court’s to direction states.”). result, aAs mistakes are bound defer the state court’s reasonable deter- Though undoubtedly to occur. we want mination, only has not de- prosecutors through follow with prived Jeffrey family Feldman and his into, agreements they enter we should not justice entitled, they to which are but need impede agree their to revive those has also stripped California of a tool used upon discovery ments of additional in to ensure that criminal defendants receive formation unless and until the sentences that are commensurate with all establishes that we do they offenses have committed. Such specific so here. circumstances See meddling by a federal court in a state’s Medina, 2572; 505 U.S. at S.Ct. justice should occur Mabry, see also U.S. at required by clearly when established Su- (“The Due Process Clause is not a no such preme precedent. Because prosecutors!.]”). code of ethics here, I respectfully dis- exists majority’s substantially ruling inter- from this sent our refusal rehear case n justice feres with sys- California’s criminal banc. en requires tem. law prosecutors California a defendant’s serious and vio- i.e., felonies, lent strikes. the safe- Without

ty valve created California Penal 969.5, 1009, 1192.5, prosecu-

sections (a)

tors will be forced to between choose

pressing imperfect ahead information

and risk potentially violating (b) refusing negotiate until com-

Case Details

Case Name: Michael Cuero v. Matthew Cate

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Mar 8, 2017

Citation: 850 F.3d 1019

Docket Number: 12-55911

Court Abbreviation: 9th Cir.