and Submitted August 5, 2015 Pasadena, California
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
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
Before: Diarmuid F. O'Scannlain, Barry G. Silverman, and
Kim McLane Wardlaw, Circuit Judges.
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.
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.
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
WARDLAW, Circuit Judge:
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 and four prison priors. 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."
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
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. 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.
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
Jurisdiction and Standard of Review
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
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. §§
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).
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
Cuero entered a binding, judicially approved plea agreement
and stood convicted.
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. 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.
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"
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. Both the
prosecutor and defense counsel assented.
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.
The prosecution breached the court-approved plea agreement by
attempting to amend the complaint.
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
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).
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).
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
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
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. 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.
Allowing Cuero to withdraw his guilty plea was no remedy at
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." Buckley, 441 F.3d at 699 n.11.
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.
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.
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.
O'SCANNLAIN, Circuit Judge, dissenting:
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.
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.
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). Cuero initially pleaded "not
guilty" to the charges in the amended complaint.
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. 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.
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. 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.
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.
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
course, Cuero brought this petition for habeas corpus in
federal district court, where it was properly denied and he
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
(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;
(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
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).
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,
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) ("[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."
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. 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.
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