Cuero v. Cate

• Decision Date: 08 March 2017
• Docket Number: No. 12-55911,12-55911
• Citation: 850 F.3d 1019
• Parties: Michael Daniel CUERO, Petitioner-Appellant, v. Matthew CATE, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

850 F.3d 1019

Michael Daniel CUERO, Petitioner-Appellant,

v.Matthew CATE, Respondent-Appellee.

No. 12-55911

United States Court of Appeals, Ninth Circuit.

Argued and Submitted August 5, 2015 Pasadena, California

Filed March 8, 2017

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.

Concurrence by Judge Wardlaw ;

Dissent by Judge Callahan

ORDER

Judges Silverman¹ 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.

I.

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.

II.

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, 123 S.Ct. 1166, 155 L.Ed.2d 144 (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, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971) ; see also Bordenkircher v. Hayes , 434 U.S. 357, 362, 98 S.Ct. 663, 54 L.Ed.2d 604 (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, 104 S.Ct. 2543, 81 L.Ed.2d 437 (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, 47 S.Ct. 582, 71 L.Ed. 1009 (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, 104 S.Ct. 2543. 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, 104 S.Ct. 2543. Cuero's plea rested on a promise of the prosecutor, requiring that promise to be "fulfilled." Santobello , 404 U.S. at 262, 92 S.Ct. 495. 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...