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Cuero v. Cate

United States Court of Appeals, Ninth Circuit

June 30, 2016

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

          Argued and Submitted August 5, 2015 Pasadena, California

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

          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.

         SUMMARY[*]

         Habeas Corpus

         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.

         The panel held that after Cuero entered a binding, judicially-approved plea agreement guaranteeing a maximum sentence of 14 years and 4 months in prison, and stood convicted, the prosecution breached the plea agreement by moving to amend the complaint to charge Cuero's prior assault conviction as a second strike, and the Superior Court acted contrary to federal law, clearly established by the Supreme Court in Santobello v. New York, 404 U.S. 257 (1971), when it permitted the amendment and refused to order specific performance of the original plea agreement. The panel wrote that by failing to interpret Cuero's plea agreement consistently with California contract law, the Superior Court unreasonably applied federal law clearly established by the Supreme Court in Ricketts v. Adamson, 483 U.S. 1 (1987). The panel explained that allowing Cuero to withdraw his guilty plea, exposing Cuero to the risk of trial and receiving an indeterminate sentence of 64 years to life, was no remedy. The panel 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.

         Dissenting, Judge O'Scannlain wrote that the majority erroneously orders federal habeas relief to a state prisoner on the basis of a non-existent plea agreement and irrelevant state contract law.

          OPINION

          WARDLAW, Circuit Judge:

         On December 8, 2005, Michael Daniel Cuero stood in open court before the Honorable Charles W. Ervin, Judge of the Superior Court in and for the County of San Diego, and pursuant to a written plea agreement, he freely and voluntarily pleaded guilty to one felony count of causing bodily injury while driving under the influence and one felony count of unlawful possession of a firearm. Cuero also admitted a single prior strike conviction[1] and four prison priors.[2] In exchange for Cuero's waiver of his constitutional and numerous other rights, the prosecution dismissed a misdemeanor count, thereby guaranteeing Cuero a maximum sentence of 14 years, 4 months in prison and 4 years of parole, as explained both in the written plea agreement, Appendix A, ¶ 7a, and by Judge Ervin during the plea colloquy. Judge Ervin then accepted Cuero's plea and admissions, and set sentencing for January 11, 2006. That same day, Judge Ervin signed the Finding and Order, Appendix A at 3, stating that "the defendant is convicted thereby."

         Cuero stood convicted; "nothing remain[ed] but to give judgment and determine punishment." Boykin v. Alabama, 395 U.S. 238, 242 (1969). Under clearly established Supreme Court law, the plea agreement bound the government. See Mabry v. Johnson, 467 U.S. 504, 507–08 (1984) (a defendant's guilty plea "implicates the Constitution, " not the "plea bargain standing alone"); Santobello v. New York, 404 U.S. 257, 262 (1971) ("[W]hen 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."); Boykin, 395 U.S. at 242, 244 ("[A] plea of guilty is more than an admission of conduct; it is a conviction."). In Cuero's case, the government was bound by its agreement in open court that punishment could be no greater than 14 years, 4 months in prison. See Ricketts v. Adamson, 483 U.S. 1, 5 n.3 (1987) ("[T]he construction of [a] plea agreement and the concomitant obligations flowing therefrom are, within broad bounds of reasonableness, matters of state law."); see also Buckley v. Terhune, 441 F.3d 688, 694 (9th Cir. 2006) (en banc) ("Under Santobello v. New York, 404 U.S. 257, 261–62 (1971), a criminal defendant has a due process right to enforce the terms of his plea agreement.").

         Improbably, the day before the scheduled sentencing, the state prosecutor moved to amend the criminal complaint to allege an additional prior strike conviction, which, if allowed, would result in an indeterminate 64 years to life sentence under California's three strikes law.[3] Even more improbably, a different Superior Court judge than Judge Ervin permitted the amendment. Not only did the prosecution breach the plea agreement by seeking to amend the complaint after the deal was sealed, the Superior Court judge unreasonably applied clearly established Supreme Court authority by failing to recognize that the "breach [was] undoubtedly a violation of the defendant's rights." Puckett v. United States, 556 U.S. 129, 136 (2009) (citing Santobello, 404 U.S. at 262). That the Superior Court allowed Cuero to withdraw his guilty plea and enter a new plea agreement calling for an indeterminate 25 years to life sentence was no remedy here; Cuero lost the benefit of his original bargain.

         Because the state court neither recognized nor applied clearly established Supreme Court authority, and acted in contravention of that authority, we reverse the judgment of the district court denying Cuero's habeas petition, and we remand with instructions to issue the writ of habeas corpus.

         I. Jurisdiction and Standard of Review[4]

         We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253. We review de novo a district court's denial of a habeas petition. Hurles v. Ryan, 752 F.3d 768, 777 (9th Cir. 2014). Because Cuero filed his federal habeas petition after April 24, 1996, the Anti-Terrorism and Effective Death Penalty Act ("AEDPA") governs our review. Id.

         AEDPA bars relitigation of any claim adjudicated on the merits in state court, unless the state court's decision satisfies the exceptions contained in 28 U.S.C. §§ 2254(d)(1) or (2). Harrington v. Richter, 562 U.S. 86, 98 (2011). Those exceptions authorize a grant of habeas relief where the relevant state-court decision was (1) "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court" or (2) "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)(1), (2).

         "[A] state-court decision is contrary to Federal law 'if the state court arrives at a conclusion opposite to that reached by th[e Supreme] Court on a question of law, ' or 'the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to [the Supreme Court].'" Murray v. Schriro, 745 F.3d 984, 997 (9th Cir. 2014) (alterations in original) (quoting Williams v. Taylor, 529 U.S. 362, 405 (2000)). "A state-court decision is an 'unreasonable application' of Supreme Court precedent if 'the state court identifies the correct governing legal rule from th[e Supreme] Court's cases but unreasonably applies it to the facts of the particular state prisoner's case, ' or 'the state court either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.'" Id. (alterations in original) (quoting Williams, 529 U.S. at 407).

         We review the last reasoned decision of the state courts. "When a state court does not explain the reason for its decision, we 'look through' to the last state-court decision that provides a reasoned explanation capable of review." Id. at 996 (quoting Shackleford v. Hubbard, 234 F.3d 1072, 1079 n.2 (9th Cir. 2000)). Where a reasoned state-court decision exists, we do not "evaluate all the hypothetical reasons that could have supported the high court's decision." Cannedy v. Adams, 706 F.3d 1148, 1157 (9th Cir.), amended on denial of reh'g by 733 F.3d 794 (9th Cir. 2013); see also id. at 1159 ("Richter does not change our practice of 'looking through' summary denials to the last reasoned decision-whether those denials are on the merits or denials of discretionary review." (footnote omitted)); Medley v. Runnels, 506 F.3d 857, 862–63 (9th Cir. 2007) (en banc) (Judge Callahan writing for the majority). Here, we evaluate the San Diego Superior Court's decision to grant the prosecution's motion to amend the complaint following Cuero's entry of his original guilty plea and his conviction based on that plea.[5]

         II. Discussion

         A. Cuero entered a binding, judicially approved plea agreement and stood convicted.

         Under clearly established Supreme Court law, Cuero stood convicted and his plea agreement became binding the moment the first Superior Court judge accepted his guilty plea. "A plea of guilty is more than a confession which admits that the accused did various acts; it is itself a conviction." Boykin, 395 U.S. at 242. And "[w]hen 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." Santobello, 404 U.S. at 262 (emphasis added); see also Peter Westen & David Westin, A Constitutional Law of Remedies for Broken Plea Bargains, 60 Calif. L. Rev. 471, 474 (1978) (citing the language quoted above as the "undisputed holding" of Santobello). A defendant's guilty plea thus "implicates the Constitution, " transforming the plea bargain from a "mere executory agreement" into a binding contract. Mabry, 467 U.S. at 507–08.[6] In other words, a guilty plea seals the deal between the state and the defendant, and vests the defendant with "a due process right to enforce the terms of his plea agreement." Buckley, 441 F.3d at 694 (citing Santobello, 404 U.S. at 261–62); see also Doe v. Harris, 640 F.3d 972, 975 (9th Cir. 2011); Brown v. Poole, 337 F.3d 1155, 1159 (9th Cir. 2003).

         In Buckley v. Terhune, our court, sitting en banc, affirmed a grant of habeas relief pursuant to 28 U.S.C. § 2254(d)(1) that ordered specific enforcement of the terms of a plea agreement. 441 F.3d at 691. There, the state prosecutor offered a plea bargain: Buckley would provide cooperating testimony against his codefendants in return for which the prosecutor would dismiss his robbery and burglary charges and reduce the first degree murder charge against him to second degree. Id. Attached to the offer was a felony disposition statement that stated, under "Consequences of the Plea, " that Buckley could be sentenced to a "maximum possible term of 15 years." Id. Buckley signed the plea agreement, initialing the maximum sentence line on December 17, 1987. Id. At some point before the change of plea hearing on January 4, 1988, the state prosecutor, on his own and without Buckley's knowledge, added a handwritten paragraph to the disposition statement stating that the sentence would be a "maximum term of 15 years to life." Id. at 691–92. Just as in Cuero's case, during the guilty plea colloquy pursuant to the plea bargain, the state court told Buckley that he could be sentenced to state prison for a "maximum possible term of fifteen years." Id. at 692. Following the trial of his codefendants in which Buckley "complied with the terms of the negotiated disposition, " according to the state prosecutor, the court sentenced Buckley to a prison term of 15 years to life. Id. at 693. And, again, just as in Cuero's case, the last reasoned state court decision failed to "interpret Buckley's plea agreement according to California contract law." Id. at 691. We affirmed the district court's grant of habeas relief because the state court's failure was "contrary to clearly established Supreme Court law as set forth in Santobello v. New York . . . and Ricketts v. Adamson, " satisfying § 2254(d)(1)'s "contrary to" exception. Id.

         While the state prosecutor here did not act so underhandedly as Buckley's, the same result obtained- Cuero performed his part of the bargain only to have the state renege on its. The state originally charged Cuero with two felonies and a misdemeanor. It later amended the complaint to add a single prior strike conviction and four prison priors. Next, the parties entered into a written plea agreement through which the state induced Cuero to cede his constitutional and other rights and plead guilty in exchange for the state's promise to drop the misdemeanor charge, thereby guaranteeing Cuero a "maximum [sentencing] exposure of 14 years, 4 months in state prison, 4 years on parole and a $10, 000 fine." On December 8, 2005, the parties signed the plea agreement, which is on page three of the dissent's Appendix A, and which, as in Buckley, under "Consequences of the Plea" set forth Cuero's state-guaranteed maximum sentencing exposure. That same day, Judge Ervin held a change of plea hearing. The state prosecutor, Kristian Trocha, Cuero, and Cuero's counsel, Alberto Tamayo, stood before Judge Ervin and expressed their mutual intent to "settle this case today." The court received the charge sheet-i.e., the amended complaint, Appendix A.1, attached to the majority opinion-and asked counsel to what Cuero would be pleading. Cuero's counsel, referring to the charge sheet, stated that Cuero would be pleading to "the sheet without the Count 3 misdemeanor." Judge Ervin reiterated, "He's going to plead guilty to everything on the charging document with the exception of Count 3." The judge next indicated that "It is a sentence for the Court, no deals with the people, " meaning that the plea agreement was as to the charge and not to the specific sentence.[7] Both the prosecutor and defense counsel assented.[8]

         Cuero was then placed under oath and asked by Judge Ervin "Did you hear the plea agreement that I described?" Following Cuero's affirmative response, the court asked, "Is it your full and complete understanding to settle this case today?" The court went on to review the forms, the dissent's Appendix A, with Cuero, asking Cuero again to inform him that he "wish[ed] to accept the agreement to this case, written on the blue form, " and to confirm Cuero "sign[ed] his name, " "place[d] his initials in these boxes, " and "put his thumb print on it." Again, following Cuero's affirmative responses, the court stated, "In addition to the plea agreement, the document [Appendix A to the dissent] sets forth and describes constitutional rights that you enjoy." See Appendix A at 1. The court next informed Cuero that 14 years, 4 months in prison was the "maximum punishment [he] could receive, " and Cuero pleaded guilty to the two felonies and admitted his single strike and four prison priors. The court accepted the plea. The court then turned to the prosecutor, Mr. Trocha, and asked, "People's motion as to the misdemeanor count, which is Count 3?" Mr. Trocha stated, "Dismiss in light of the plea." The court then granted the state's motion "in light of the plea, " accepted "the defendant's plea and admissions, " and concluded that "the defendant is convicted thereby." Nothing more was required to consummate Cuero's plea agreement; it "was accepted and final . . . at the moment that the judge made the requisite factual findings and accepted the plea." Brown, 337 F.3d at 1159. And the prosecution was bound by the agreement's terms, which it acknowledged by immediately moving to dismiss the misdemeanor charge.[9]

         B. The prosecution breached the court-approved plea agreement by attempting to amend the complaint.

         Although the prosecution initially honored its promise to dismiss the misdemeanor charge, it then breached the plea agreement by moving to amend the complaint to charge Cuero's prior assault conviction as a second strike. The Superior Court acted contrary to clearly established Supreme Court law by permitting the amendment and refusing to enforce the original plea agreement.

         "[T]he construction of [a] plea agreement and the concomitant obligations flowing therefrom are, within broad bounds of reasonableness, matters of state law." Adamson, 483 U.S. at 5 n.3; see also Buckley, 397 F.3d at 1161–62 (Bea, J., dissenting) ("At the time of the state habeas proceeding, clearly established Federal law, as determined by the Supreme Court, made the interpretation and construction of a plea agreement a matter of state law." (citing Adamson, 483 U.S. at 5 n.3)), majority rev'd en banc, 441 F.3d 688 (9th Cir. 2006); see also Puckett, 556 U.S. at 137 ("[P]lea bargains are essentially contracts."). "Under AEDPA, we . . . must consider whether the [state court] decision is consistent with a proper application of state contract law in interpreting the plea agreement; if not, the decision was an 'unreasonable application of' clearly established federal law." Davis v. Woodford, 446 F.3d 957, 962 (9th Cir. 2006) (citing, inter alia, Adamson, 483 U.S. at 5 n.3). In Buckley, we noted that as of 1999, when the state court summarily denied Buckley's habeas petition, the obligation to construe plea agreements according to state contract law "had been clearly established federal law for more than a decade." 441 F.3d at 694–95 (quoting Adamson, 483 U.S. at 6 n.3).[10]

         Under California law, "[a] plea agreement is, in essence, a contract between the defendant and the prosecutor to which the court consents to be bound." People v. Segura, 188 P.3d 649, 656 (Cal. 2008) (quoting People v. Ames, 261 Cal.Rptr. 911, 913 (Ct. App. 1989)). Thus, "[a] negotiated plea agreement . . . is interpreted according to general contract principles." People v. Shelton, 125 P.3d 290, 294 (Cal. 2006). Under California law, "[a] contract must be so interpreted as to give effect to the mutual intention of the parties as it existed at the time of contracting." Cal. Civ. Code § 1636. A contract's "clear and explicit" language governs its interpretation. Id. § 1638. Moreover, "[a]lthough a plea agreement does not divest the court of its inherent sentencing discretion, 'a judge who has accepted a plea bargain is bound to impose a sentence within the limits of that bargain.'" Segura, 188 P.3d at 656 (quoting Ames, 261 Cal.Rptr. at 913).

         The terms of Cuero's plea agreement were "clear and explicit": Cuero promised to plead guilty to two felonies, a prior strike, and four prison priors; in exchange, the state promised to drop the misdemeanor charge. By seeking to amend the charges in the complaint, the prosecution denied Cuero the benefit of his bargain: a maximum sentence of 14 years and 4 months. And, as a result of the amendment, the Superior Court ultimately imposed an indeterminate life sentence well beyond the limits of the plea agreement.[11]

         Moreover, the agreement said nothing about altering the foundational assumption on which the bargain was struck-namely, the set of charges alleged in the criminal complaint. See People v. Walker, 819 P.2d 861, 867 (Cal. 1991) overruled on other grounds by People v. Villalobos, 277 P.3d 179 (Cal. 2012) ("When a guilty plea is entered in exchange for specified benefits such as the dismissal of other counts or an agreed maximum punishment, both parties, including the state, must abide by the terms of the agreement."). Such an implied term would render the agreement illusory by providing the state unfettered license to terminate it. See Sateriale v. R.J. Reynolds Tobacco Co., 697 F.3d 777, 791 (9th Cir. 2012) ("[A]n enforceable termination clause that gives a promisor an unrestricted power to terminate a contract at any time, without notice, renders the promise illusory and unenforceable, at least so long as the purported contract remains wholly executory."). This outcome is inconsistent with California contract law, which prefers an "interpretation which gives effect" to a contract over one that would render it void. Cal. Civ. Code § 3541.[12]

         As in Buckley, where we noted that the state court's decision denying habeas neither mentioned state contract law nor referred to the terms of the plea agreement, nothing in the second Superior Court judge's decision permitting the state prosecutor's amendment here suggests that it understood it was dealing with a binding plea agreement, let alone that it was constitutionally obligated to construe the agreement in accordance with state contract law. See Buckley, 441 F.3d at 696. Tellingly, the Superior Court permitted the amendment in reliance on two state cases: People v. Superior Court (Alvarado), 255 Cal.Rptr. 46 (Ct. App. 1989), and People v. Jackson, 48 Cal.Rptr.2d 838 (Ct. App.), review granted and opinion superseded, 914 P.2d 831 (Cal. 1996). Although both cases address the propriety of permitting amendment of a complaint after a defendant enters a guilty plea, neither addresses the propriety of such amendment after a defendant enters a guilty plea induced by a prosecutorial promise-i.e., pursuant to a plea bargain-and it has been approved by the court.[13] See Jackson, 48 Cal.Rptr.2d at 840 ("[T]he court took Jackson's plea to the face of the complaint."); Alvarado, 207 Cal.App.3d at 471 (noting that the transcript of the plea colloquy "does not indicate any plea bargain"). In other words, neither Alvarado nor Jackson discusses the scenario present here, where the court-approved guilty plea was entered pursuant to a written plea agreement. Indeed, neither case contains so much as a hint that the court was applying California contract law. Thus, by failing to interpret Cuero's plea agreement consistently with California contract law, the Superior Court unreasonably applied federal law clearly established by the Supreme Court in Adamson nearly thirty years ago.

         C. Allowing Cuero to withdraw his guilty plea was no remedy at all.

         The Superior Court also unreasonably applied clearly established federal law by failing to order specific performance of Cuero's plea agreement. A state court must supply a remedy for a breached plea agreement that comports with state contract law. See Puckett, 556 U.S. at 137; Adamson, 483 U.S. at 5 n.3; Davis, 446 F.3d at 962. Under California law, the remedy for breach must "repair the harm caused by the breach." People v. Toscano, 20 Cal.Rptr.3d 923, 927 (Ct. App. 2004). "'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 caused by the prosecutor's breach." In re Timothy N., 157 Cal.Rptr.3d 78, 88 (Ct. App. 2013) (alteration in original) (quoting People v. Kaanehe, 19 Cal.3d 1, 13 (1977)). Under Buckley, which we are bound to follow, in a situation like that here, where the state has already received the benefit it bargained for-a plea of guilty and a conviction-specific performance is the best remedy, unless the defendant, whose choice it becomes, "elect[s] instead to rescind the agreement and take his chances from there."[14] Buckley, 441 F.3d at 699 n.11.

         Moreover, that the state court permitted Cuero to withdraw his plea did not "repair the harm" caused by the prosecutor's breach. To the contrary: It exposed Cuero to the risk of going to trial and receiving an indeterminate 64 years to life sentence. This is hardly the "remedy" Cuero would have elected had he properly been given a choice. That Cuero was ultimately able to "bargain" for an indeterminate 25 years to life sentence does not alter the analysis; the state could not have lawfully pursued an indeterminate life sentence in the first place if it had not been allowed to breach the plea agreement. Again, Cuero had performed his part of the agreement by pleading guilty to the two felony charges, admitting a single prior strike, and conceding his four prison priors, giving the government the bargain it sought. Because Cuero had already performed, "fundamental fairness demands that the state be compelled to adhere to the agreement as well." Brown, 337 F.3d at 1162 (citation omitted). Cuero is therefore entitled to the benefit of his original bargain: a maximum sentence of 14 years, 4 months in prison.

         III. Conclusion

         The San Diego Superior Court failed to recognize that Cuero's entry and Judge Ervin's acceptance of Cuero's guilty plea pursuant to the written plea agreement was binding on both sides. By allowing the prosecution to breach the agreement, reneging on the promise that induced Cuero's plea, the state court violated federal law clearly established by the Supreme Court in Santobello. It further violated clearly established federal law requiring construction of the plea agreement under state contract law. See Adamson, 483 U.S. at 5 n.3; Buckley, 441 F.3d at 697. Even worse, the last reasoned decision of the state courts relied on two inapposite state law cases and failed to even acknowledge, much less apply, the well-established Supreme Court authority that dictated the contrary result. This error had a "substantial and injurious effect" on Cuero, who is serving an indeterminate life sentence, the minimum term of which, 25 years, is well in excess of the 14 year, 4 month maximum promised by the government. See Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (citation omitted). Cuero is entitled to habeas relief.

         Accordingly, the district court's judgment denying Cuero's petition for a writ of habeas corpus is reversed with instructions to issue a conditional writ requiring the state to resentence Petitioner in accordance with the original plea agreement within sixty days of the issuance of the mandate.

         REVERSED and REMANDED.

         (APPENDIX A.1 OMITTED)

          O'SCANNLAIN, Circuit Judge, dissenting:

         Today, the Court erroneously orders federal habeas relief to a state prisoner on the basis of a non-existent plea agreement and irrelevant state contract law. Because the decision of the California Court of Appeal affirming Cuero's conviction was neither contrary to, nor an unreasonable application of, Supreme Court precedent, the district court's denial of the writ of habeas corpus should have been affirmed.

         I respectfully dissent.

         I

         A

         It is appropriate to recapitulate the relevant facts. While driving under the influence of methamphetamine, Michael Daniel Cuero veered off the road and crashed his car into Jeffrey Feldman, another driver who was standing outside his pickup truck on the side of the road. Feldman sustained severe injuries including a ruptured spleen, brain damage, and facial disfigurement. Cuero, a convicted felon prohibited from possessing a firearm, had a loaded firearm with him.

         Over the next two weeks, the State filed a complaint and then an amended complaint against Cuero. The amended complaint charged two felonies (driving under the influence and possession of a firearm by a felon) and one misdemeanor (being under the influence of a controlled substance). The State alleged that Cuero had served four prior prison terms and that one of Cuero's prior convictions constituted a "strike" under California's "three strikes law." See Cal. Penal Code § 667(b)–(i).[1] Cuero initially pleaded "not guilty" to the charges in the amended complaint.

         On December 8, 2005, Cuero appeared before the superior court to change his plea to guilty. He signed a change of plea form, which stated that he had not been induced to enter the plea by any promises of any kind and that he had no deals with the State.[2] After the court had accepted Cuero's plea on both felonies and his admissions to the "prison priors" and prior strike, the State moved to dismiss the misdemeanor count, and the court granted the motion. A sentencing hearing was then scheduled.

         B

         According to the State, during the preparation of the sentencing memorandum for the superior court, the probation officer discovered that one of Cuero's prior convictions constituted a strike in addition to the single strike alleged in the first amended complaint.[3] Prior to the scheduled sentencing hearing, the State moved under California Penal Code § 969.5(a) further to amend its complaint again to add the allegation of the second strike. Cuero opposed the motion. On February 2, 2006, the superior court granted the motion with the condition that Cuero would be permitted to withdraw his guilty plea, thus restoring all of his constitutional rights. The court then accepted for filing the second amended complaint alleging the additional strike.

         On March 27, 2006, Cuero moved to withdraw his guilty plea entered on December 8, 2005. The court granted the motion and set aside that plea. As part of a "negotiated guilty plea, " the State filed a third amended complaint omitting the felon-in-possession charge, and Cuero pleaded guilty to the charge of driving under the influence and admitted the two prior strikes. On April 20, 2006, the court sentenced Cuero to a term of 25 years to life pursuant to the plea agreement and pronounced judgment.

         C

         Cuero appealed to the California Court of Appeal. Pursuant to People v. Wende, 600 P.2d 1071 (Cal. 1979), and Anders v. California, 386 U.S. 738 (1967), Cuero's appointed appellate counsel filed a brief setting forth the evidence in the superior court, presented no argument for reversal, but asked the court of appeal to review the record for error. The brief directed the court's attention to two potential, but not arguable, issues: (1) "whether the trial court abused its discretion by permitting the prosecutor to amend the complaint to allege additional priors after [Cuero's] initial guilty plea" (citing People v. Sipe, 42 Cal.Rptr.2d 266 (Ct. App. 1995); People v. Superior Court (Alvarado), 255 Cal.Rptr. 46 (Ct. App. 1989)); and (2) "whether the amendment constituted a breach of a plea agreement in violation of due process, entitling [Cuero] to specific performance of the original agreement" (citing People v. Walker, 819 P.2d 861 (Cal. 1991), overruled in part by People v. Villalobos, 277 P.3d 179 (Cal. 2012); People v. Mancheno, 654 P.2d 211 (Cal. 1982)). The California Court of Appeal granted Cuero permission to file a brief on his own behalf, but he did not respond. The court reviewed the entire record and the possible issues raised by counsel's Wende/Anders brief. It concluded that they "disclosed no reasonably arguable appellate issue" and affirmed, noting that "[c]ompetent counsel has represented Cuero on this appeal."

         In due course, Cuero brought this petition for habeas corpus in federal district court, where it was properly denied and he timely appealed.

         II

         A

         As a reminder, it must be observed that a state prisoner's federal habeas petition "shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim–

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."

28 U.S.C. § 2254(d). "This is a 'difficult to meet' and 'highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt.'" Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (quoting Harrington v. Richter, 562 U.S. 86, 102 (2011); Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam)).

         Contrary to the majority's suggestion that the § 2254(d) "exceptions authorize a grant of habeas relief, " Maj. Op. at 7, these clauses prescribe conditions that are necessary, but not sufficient, for habeas relief under AEDPA. Other requirements exist. Most importantly for this case, § 2254(d) "does not repeal the command of § 2254(a) that habeas relief may be afforded to a state prisoner 'only on the ground' that his custody violates federal law." Wilson v. Corcoran, 562 U.S. 1, 5–6 (2010) (per curiam).

         For purposes of § 2254(d)(1), "clearly established Federal law" 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) (citations omitted). It "includes only the holdings, as opposed to the dicta, of [the Supreme Court's] decisions." Woods v. Donald, 135 S.Ct. 1372');">135 S.Ct. 1372, 1376 (2015) (per curiam) (quoting White v. Woodall, 134 S.Ct. 1697, 1702 (2014)).

         B

         A threshold problem with the opinion's analysis is its failure to identify the appropriate state-court decision before us. The majority concludes that we should "look through" the opinion of the California Court of Appeal on direct review to the earlier reasoned decision of the San Diego Superior Court. Maj. Op. at 8. However, the look-through doctrine only applies "[w]here there has been one reasoned state judgment rejecting a federal claim, " Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991), and we cannot "look through" when the federal claim at issue was not "adjudicated on the merits" in the prior reasoned decision, see 28 U.S.C. § 2254(d); Casey v. Moore, 386 F.3d 896, 918 n.23 (9th Cir. 2004); Medley v. Runnels, 506 F.3d 857, 870–71 (9th Cir. 2007) (en banc) (Ikuta, J., concurring in part, dissenting in part) ("[W]e do not 'look through' to a state decision which does not address the constitutional claim."); see also Murray v. Schriro, 745 F.3d 984, 997 (9th Cir. 2014)[4] ("[W]e 'look through' to the last state-court decision that provides a reasoned explanation capable of review." (emphasis added)); Ortiz v. Yates, 704 F.3d 1026, 1034 (9th Cir. 2012) ("[W]e look through state-court summary denials to the last reasoned state-court opinion on the claim at issue." (emphasis added)).

         Here, the superior court never did adjudicate the merits of Cuero's claim that the second amendment of the complaint constituted a breach of his plea agreement in violation of due process, entitling him to specific performance. In Cuero's brief in opposition to the motion to amend and in oral argument on the motion, he exclusively argued that the superior court should exercise its discretion under state law to deny leave to amend.[5] Cuero did not argue that the second amendment of the complaint would violate due process. He did not argue that any plea agreement prohibited the second amendment of the complaint, nor that he was entitled to specific performance, nor that the state court was required to construe plea agreements in accordance with state contract law. Indeed, Cuero argues to us that his trial counsel was ineffective for failing to raise Cuero's due process claim before the superior court.

         Thus, Cuero never raised a due process claim, and the superior court did not decide one. As a result, Cuero's claim that the second amendment of the complaint breached a preexisting plea agreement and thereby violated due process was not adjudicated on the merits by the superior court. Such claim was indeed adjudicated on the merits by a single state-court decision: the opinion of the California Court of Appeal on direct ...


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