United States District Court, C.D. California
For Mario Quintana, Petitioner: Walter K Pyle, Walter K Pyle Law Offices, Berkeley, CA.
For Matthew L Cate, Secretary of the CDCR, Respondent: E Carlos Dominguez, CAAG - Office of the Attorney General, California Department of Justice, Los Angeles, CA.
ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
MICHAEL W. FITZGERALD, United States District Judge.
Pursuant to 28 U.S.C. § 636, the Court has reviewed the First Amended Petition, all of the records herein and the attached Report and Recommendation of United States Magistrate Judge. After having made a de novo determination of the portions of the Report and Recommendation to which Objections were directed, the Court concurs with and accepts the findings and conclusions of the Magistrate Judge.
Petitioner is serving a sentence of twenty-five years to life. Petitioner asserts that he has a right to specific performance of his plea agreement, i.e., that his parole eligibility must be calculated according to the agreement, which would result in parole eligibility after 20 years instead of 25 years. (Respondent believes his parole date would then be August 2018.) More specifically, Petitioner claims that specific performance is a constitutional right clearly established in Santobello v. New York,
404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), and therefore his claim is cognizable under AEDPA, 28 U.S.C. § 2254(d)(1). The Magistrate Judge agreed, and has issued a Report and Recommendation (Docket No. 56) (the " Report" ) that the First Amended Petition be granted. Respondent filed his Objections to Report and Recommendation of United States Magistrate Judge (Docket No. 59) (" Objections" ), to which Petitioner through counsel filed a Response to State's Objections to Report & Recommendations. (Docket No. 60).
The Court has carefully considered Respondent's Objections. Not surprisingly, Respondent claims that the Report substitutes the judgment of the Ninth Circuit for that of the California courts, in that Santobello does not clearly establish any right applicable in Petitioner's circumstances, which require specific performance in violation of state law. (Objections at 3-5). In particular, Respondent objects to the reliance on Ninth Circuit cases. ( Id. at 4:17 to 5:14). In addition, Respondent asserts that the Report displayed insufficient deference to the ruling of the Los Angeles Superior Court on Petitioner's state petition, which the California Supreme Court summarily affirmed. (Objections at 5-7). The superior court held an evidentiary hearing and issued a reasoned opinion that the plea agreement was violated, but that specific performance would violate California law and was therefore unavailable. (Report at 3).
This Court and the Magistrate Judge certainly have respect for AEDPA and the superior court and Respondent's Objections are not frivolous. Nonetheless, the Objections must be overruled. The Magistrate Judge properly focused on the narrow issue presented -- whether Santobello clearly established a constitutional right as to which the the superior court made an unreasonable application. (Report at 15-16). On this issue, Ninth Circuit precedent applies to subsequent panels and to this Court. See Marshall v. Rodgers, 133 S.Ct. 1446, 1450-51, 185 L.Ed.2d 540 (2013) (an appellate panel may " look to circuit precedent to ascertain whether it has already held that the particular point in issue is clearly established by Supreme Court precedent. . . ." ) Under the view of Santobello expressed in the cited cases, it is simply not possible to determine otherwise. Davis v. Woodford, 446 F.3d 957 (9th Cir. 2006) (enforcing agreement despite subsequent change in law); Buckley v. Terhune, 441 F.3d 688, 699 (9th Cir. 2006) (en banc) (ordering specific performance of plea bargain even though second-degree murder did not allow that sentence); Brown v. Poole, 337 F.3d 1155, 1161 (9th Cir. 2003) (plea induced by an unfulfillable promise is subject to challenge).
And so we come to Sanchez v. LaMarque, 237 F.App'x 302, 303 (9th Cir. 2007), upon which the Magistrate Judge relied. (Report at 14, 29-30). Respondent fails to mention Sanchez in his Objections but did attempt (vainly) to distinguish the decision before the Magistrate Judge and it was noted by the superior court. Sanchez involved virtually identical facts to those here and an identical legal posture. ( Id.). If it were a published decision, then there would be no question that the First Amended Petition must be granted, at least as far as a district court would be concerned. But even as an unpublished decision, it is still available to be cited. Fed. R. App. P. 32.1(a); Circuit Rule 36-3(b). And it would appear that the Sanchez panel viewed its decision under AEDPA as a routine application of the cited cases, which in turn applied Santobello.
The real objection here, and it is an important one, is that all ...