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Cuero v. Cate

United States Court of Appeals, Ninth Circuit

March 8, 2017

Michael Daniel Cuero, Petitioner-Appellant,
Matthew Cate, Respondent-Appellee.

          Argued and Submitted August 5, 2015 Pasadena, California

         Appeal from the United States District Court for the Southern District of California Barry T. Moskowitz, District Judge, Presiding D.C. No. 3:08-cv-02008-BTM-WMC

          Devin Burstein (argued), Warren & Burstein, San Diego, California, for Petitioner-Appellant.

          Anthony Da Silva (argued) and Matthew Mulford, Deputy Attorneys General; Julie L. Garland, Senior Assistant Attorney General; Gerald A. Engler, Chief Assistant Attorney General; Kamala Harris, Attorney General of California; Office of the Attorney General, San Diego, California; for Respondent-Appellee.

          Before: Diarmuid F. O'Scannlain, Barry G. Silverman, and Kim McLane Wardlaw, Circuit Judges.


         Habeas Corpus

         The panel denied a petition for panel rehearing and, on behalf of the court, a petition for rehearing en banc, in a case in which the panel reversed the district court's judgment denying California state prisoner Michael Daniel Cuero's 28 U.S.C. § 2254 habeas corpus petition and remanded with instructions to issue a conditional writ requiring the state to resentence Cuero in accordance with the original plea agreement within 60 days of the issuance of the mandate.

         Concurring in the denial of rehearing en banc, Judge Wardlaw, joined by Judge Silverman, wrote that there is no need for the dissent's "sky is falling" rhetoric, as this is the rare case where the state court's decision was contrary to then-clearly established Supreme Court law governing guilty pleas induced by agreements with the prosecutor.

         Judge Callahan, joined by Judges O'Scannlain, Tallman, Bybee, Bea, M. Smith, and Ikuta, dissented from the denial of rehearing en banc. She wrote that the three-judge panel decision is not based on clearly established federal law, as the Supreme Court has never held that the Due Process Clause precludes post-plea, pre-judgment amendments to a complaint; that the Supreme Court has never ordered the reinstatement of an alleged plea agreement that was not in effect at the time judgment was entered; and that such an exercise of raw federal judiciary power is exactly what the Antiterrorism and Effective Death Penalty Act prohibits.


         Judges Silverman[1] and Wardlaw have voted to deny the petition for panel rehearing and rehearing en banc. Judge O'Scannlain has voted to grant the petition for panel rehearing and rehearing en banc.

         The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed. R. App. P. 35.

         The petition for panel rehearing and rehearing en banc is DENIED.

         IT IS SO ORDERED.

          WARDLAW, Circuit Judge, with whom SILVERMAN, Circuit Judge, joins, concurring in the denial of rehearing en banc

         The panel majority opinion speaks for itself. I respectfully suggest that there is no need for the dissent's "the sky is falling" rhetoric. This is the rare case where the state court's decision was contrary to then-clearly established Supreme Court law governing guilty pleas induced by agreements with the prosecutor. It is no wonder that a majority of our active judges declined to rehear this simple appeal en banc.


         On October 18, 2005, the San Diego County District Attorney's Office filed a criminal complaint against Cuero. The complaint, as amended, charged Cuero with two felonies, causing great bodily injury to another while driving under the influence and being a felon in possession of a firearm, as well as with a misdemeanor charge of being under the influence of a controlled substance. The state alleged, based on its review of Cuero's criminal history, that Cuero had a single strike for first-degree burglary and three additional prior convictions resulting in prison terms that did not constitute strikes.

         Cuero and the prosecution reached a plea agreement, which they reduced to writing. Cuero would plead guilty to the two substantive felony counts listed in the first amended complaint and admit his four prior convictions. In exchange, the state would drop the misdemeanor charge from the complaint. This agreement represented a charge bargain only, not a sentence bargain.[1] As indicated on the plea agreement, the parties did not agree to a particular sentence, leaving sentencing to the court within the maximum statutory sentence of 14 years, 4 months of incarceration.

         On December 8, 2005, Cuero pleaded guilty pursuant to the terms of the plea deal. During the change-of-plea proceeding, the court reviewed the plea agreement, signed by both defense counsel and the state prosecutor, and noted that the parties had left the "sentence for the Court" and that Cuero had made no sentencing deals "with the People." The court confirmed that Cuero had heard "the plea agreement that [the court] described, " that it was his "full and complete understanding of the agreement to settle this case" and that he "wish[ed] to accept the agreement to this case." The judge also explained that "[i]n addition to the plea agreement, " the document set forth the constitutional rights Cuero relinquished by pleading guilty.

         Cuero fully performed his obligations under the plea bargain, pleading guilty and waiving his constitutional and other rights. The government then moved to dismiss the misdemeanor count "in light of the plea, " carrying out its own obligation under the agreement. Once Cuero pleaded guilty to the relevant charges and the prosecution moved to drop the misdemeanor charge, the trial judge signed the court's "Finding and Order" accepting Cuero's plea and admissions and concluding that Cuero was "convicted thereby." The court scheduled sentencing for January 11, 2006.

         While preparing for sentencing, the prosecution apparently concluded that another of Cuero's prior convictions constituted a strike. Though the prosecutor was previously aware of this conviction (as evidenced by the fact she charged it in the complaint to which Cuero had pleaded guilty pursuant to the plea deal), she did not initially notice that the prior conviction could be counted as a strike. Notwithstanding the written agreement "to settle this case" and Cuero's preexisting guilty plea and conviction, the prosecution moved to amend the complaint to add a second strike and two additional felony priors, drastically increasing Cuero's sentencing exposure from a maximum of 14 years, 4 months to a minimum of 25 years and a maximum of 64 years to life. A different Superior Court judge than the one who accepted the plea agreement and signed the conviction papers permitted, over defense counsel's objection, the prosecutor to "amend" the charging document. Cuero, deprived of the benefit of his original bargain and having no other choice, entered into a new plea agreement exposing him to a maximum sentence of 25 years to life. On April 20, 2006, the new trial judge sentenced Cuero to 25 years to life.


         Under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), a habeas petition may not be granted unless the state court's adjudication of the claim under review "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law" or "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). "[C]learly established Federal law under § 2254(d)(1) is the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision." Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003) (internal quotation marks omitted). At the time of the state court's decision, Supreme Court precedent clearly established that it was a violation of Michael Cuero's due process rights for the prosecution to seek to amend its complaint after Cuero entered a guilty plea induced by a plea agreement with the State. The trial judge's decision to allow the prosecution to amend the complaint after Cuero pleaded guilty and was convicted pursuant to the agreement thus violated clearly established Supreme Court law, satisfying AEDPA's requirements.

         First, Santobello v. New York holds that "when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled." 404 U.S. 257, 262 (1971); see also Bordenkircher v. Hayes, 434 U.S. 357, 362 (1978) ("[A] prosecutor's plea-bargaining promise must be kept."). Santobello stands for the proposition that "a criminal defendant has a due process right to enforce the terms of his plea agreement." Buckley v. Terhune, 441 F.3d 688, 694 (9th Cir. 2006) (en banc).[2]

         Second, the Court in Mabry v. Johnson instructed us that a guilty plea entered pursuant to a plea agreement "implicates the Constitution." 467 U.S. 504, 507-08 (1984) ("A plea bargain standing alone is without constitutional significance . . . . It is the ensuing guilty plea that implicates the Constitution. Only after respondent pleaded guilty was he convicted, and it is that conviction which gave rise to the deprivation of respondent's liberty at issue here."); see also Kercheval v. United States, 274 U.S. 220, 223 (1927) ("A plea of guilty . . . is itself a conviction. Like a verdict of a jury it is conclusive. . . . [T]he court has nothing to do but give judgment and sentence."). My dissenting colleagues incorrectly claim that Mabry did not determine the point at which a defendant's due process right to enforce his plea agreement attaches. Yet the central issue in Mabry was whether due process concerns are implicated when a defendant accepts the prosecution's offer of a plea deal or only when the defendant pleads guilty in detrimental reliance on the plea agreement. See Mabry, 467 U.S. at 507-10. The core holding of Mabry is thus that a plea of guilty induced by a plea agreement triggers due process protection.

         Together, these Supreme Court cases clearly establish that a defendant whose guilty plea was induced by a prosecutorial promise is constitutionally entitled to fulfillment of that promise and that a subsequent prosecutorial breach of the plea agreement violates the defendant's due process rights. Once Cuero fully performed his promise to plead guilty and the government moved to dismiss his misdemeanor charge, Cuero stood "convicted" pursuant to a "Finding and Order" signed by the judge. According to Mabry, at that point Cuero's plea agreement transformed from an "executory agreement" that did not "implicate[] the Constitution" to one that bore "constitutional significance" because Cuero's guilty plea and conviction were induced by the prosecutor's agreement to the reduced charges. 467 U.S. at 507-08. Cuero's plea rested on a promise of the prosecutor, requiring that promise to be "fulfilled." Santobello, 404 U.S. at 262. The plea bargain became a constitutionally enforceable agreement, and Cuero was entitled to have the prosecution carry out its end of the deal.

         There is absolutely no support for the dissent's supposition that whether the Due Process Clause is implicated turns on whether the defendant has been sentenced and final judgment rendered. In fact, the Supreme Court has held distinctly contrary to the dissent's view. In Santobello, the Supreme Court addressed the Due Process Clause's application to circumstances strikingly similar to Cuero's. At the point when the prosecution breached Santobello's plea agreement, a judgment setting forth the sentence had not been entered. The prosecution had promised in the pre-judgment plea agreement that it would not make a sentencing recommendation, and Santobello pleaded guilty in accordance with that agreement. 404 U.S. at 258-59. At sentencing, the government broke its promise by urging the court to adopt the maximum available sentence, one year. Id. at 259. The Supreme Court held that Santobello had a due process right to enforce the terms of his plea agreement, finding that the prosecutor breached the agreement and that "the adjudicative element inherent in accepting a plea of guilty" must contain safeguards to protect the rights of defendants, including the right to have a prosecutorial promise fulfilled when such promise was used to induce a guilty plea. Id. at 262 (emphasis added).

         Defendants routinely promise pursuant to plea agreements both to plead guilty and to cooperate by testifying at a codefendant's trial. The defendant enters his plea, the plea is accepted by the court, but he is not sentenced until after he fully cooperates, and therefore a final judgment is not immediately entered. According to the dissent's analysis, because the defendant has not been convicted and final judgment has not been entered, an amendment of the charging document at that point would be constitutionally permissible. Yet it would be a clear violation of a defendant's due process rights to allow the prosecution to breach the agreement by seeking to amend the complaint or indictment at that stage, once the defendant had already fully performed his end of the bargain by testifying against his codefendant. It therefore cannot be the case that due process rights do not attach until the defendant has already been sentenced and "final judgment" entered. The dissent's discussion of the distinction between a guilty plea and the entry of judgment (which carefully omits the fact of conviction following entry of a plea) is thus a distinction without a difference to our analysis.

         Similarly, the dissent's argument that the original plea agreement "was not in effect at the time judgment was entered" and therefore lacks constitutional significance begs the question. The original plea deal was "in effect" when Cuero first pleaded guilty and was convicted pursuant to his plea. To the extent the agreement ceased to be "in effect, " this was solely because in the interim the government was allowed to breach the agreement, leaving Cuero no choice but to plead a second time to a different complaint and be convicted once more. The dissent's argument reduces to the proposition that because the government breached the first plea agreement, Cuero's guilty plea and resulting conviction induced by that plea agreement did not implicate due process, creating a catch-22 for Cuero and like defendants. According to my dissenting colleagues, the due process right to enforce a plea agreement would apply only where the prosecutor had not previously breached it.


         The dissent similarly holds an alternative view of state law untethered to reality. California state law treats guilty pleas entered without the inducement of a plea agreement with the State differently from those that are entered pursuant to a plea deal. Under California law, the rights of both parties to back out of the plea agreement terminated once Cuero entered his plea pursuant to the parties' agreement and was convicted. Cuero did not simply enter a plea that he could withdraw. The trial court "made the requisite factual findings and accepted the plea, " Brown v. Poole, 337 F.3d 1155, 1159 (9th Cir. 2003), and concluded that Cuero was "convicted thereby." Once the plea was accepted and Cuero was convicted, he could no longer withdraw his guilty plea absent good cause and an exercise of discretion by the court. Cal. Penal Code § 1018. Similarly, California Penal Code § 969.5, while allowing the prosecution to amend a complaint after the entry of guilty pleas without plea agreements, does not allow the prosecution to amend its complaint following a guilty plea that was induced by prosecutorial promises embedded in a plea agreement. Instead, under California law, "a prosecutor may withdraw from a plea bargain at any time before the defendant pleads guilty or otherwise detrimentally relies on that bargain." 3 B.E. Witkin et al., California Criminal Law § 382 (4th ed. 2012) (emphasis added); see also People v. Superior Court (Alvarado), 255 Cal.Rptr. 46, 50-51 (Ct. App. 1989). California law does not permit amendment to the complaint when the guilty plea is entered in reliance on a plea agreement precisely because such an interpretation would run afoul of the due process protections that attach under those circumstances. The dissent is therefore wrong as a matter of state as well as constitutional law.


         The dissent further misstates California law providing the requisite remedy for the prosecution's breach. As the dissent acknowledges, the Supreme Court has clearly established that "the construction of [a] plea agreement and the concomitant obligations flowing therefrom are, within broad bounds of reasonableness, matters of state law." Ricketts v. Adamson, 483 U.S. 1, 5 n.3 (1987). Moreover, both Supreme Court and California precedent provide that plea agreements are to be interpreted in accordance with state contract law. See Puckett v. United States, 556 U.S. 129, 137 (2009) ("[P]lea bargains are essentially contracts."); People v. Segura, 188 P.3d 649, 656 (Cal. 2008) ("A plea agreement is, in essence, a contract between the defendant and the prosecutor to which the court consents to be bound." (quoting People v. Ames, 261 Cal.Rptr. 911, 913 (Ct. App. 1989))). "A negotiated plea agreement is a form of contract, and it is interpreted according to general contract principles." People v. Shelton, 125 P.3d 290, 294 (Cal. 2006).

         By seeking to amend the complaint after Cuero waived all his rights, pleaded guilty and was convicted, the prosecution breached the fundamental promise it made to Cuero: The State agreed to drop a charge and thereby limit Cuero's maximum exposure to 14 years, 4 months incarceration. The foundation of a charge bargain is that the parties reach an agreement as to what the prosecution will and will not charge and to what the defendant will plead. See LaFave, supra, at § 21.1(a). By definition, a charge bargain means that the prosecution will not later add charges or strikes, just as the defendant will not plead to less than the agreed-upon charges and strikes. The government's attempt to amend the complaint unequivocally breached its central promise to Cuero.[3]

         "Where a plea agreement is breached, the purpose of the remedy is, to the extent possible, to repair the harm caused by the breach." Buckley, 441 F.3d at 699 (internal quotation marks omitted) (quoting People v. Toscano, 20 Cal.Rptr.3d 923, 927 (Ct. App. 2004) (citing People v. Kaanehe, 559 P.2d 1028, 1036-37 (Cal. 1977))). California law calls for specific performance "when it will implement the reasonable expectations of the parties without binding the trial judge to a disposition that he or she considers unsuitable under all the circumstances." People v. Mancheno, 654 P.2d 211, 215 (Cal. 1982). "When the breach [alleged] is a refusal by the prosecutor to comply with the agreement, specific enforcement would consist of an order directing the prosecutor to fulfill the bargain and will be granted where there is a substantial possibility that specific performance will completely repair the harm ...

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