Kernan, Secretary, California Department of Corrections and Rehabilitation v. Cuero

states court of appeals for the ninth circuit

No. 16–1468. Decided November 6, 2017 Respondent Michael Cuero pleaded guilty to two California state felonies and entered a plea agreement under which he was subject to a maximum prison sentence of 14 years, 4 months. Before the sentencing hearing, the prosecution reevaluated Cuero's criminal history and determined that Cuero was subject to a minimum sentence of 25 years under California's “three strikes” law. The trial court permitted the State to amend the complaint accordingly and allowed Cuero to withdraw his guilty plea. Cuero entered a new guilty plea to the amended complaint and was sentenced to a term of 25 years to life. After an unsuccessful direct appeal and state habeas petition, Cuero sought federal habeas relief. The District Court denied his petition, but the Ninth Circuit reversed, holding that the state court's refusal to enforce the original plea agreement was “contrary to . . . clearly established Federal law, as determined by the Supreme Court of the United States,” 28 U. S. C. § 2254(d)(1), and that Cuero was entitled to specific performance of the original plea agreement. Held: 1. The Ninth Circuit's issuance of its mandate in this case and the trial court's resentencing of Cuero does not moot this case because a

controversy remains over the proper length of Cuero's sentence. Neither the losing party's failure to obtain a stay of the mandate nor the trial court's action in light of that mandate makes the case moot. See, e. g., Mancusi v. Stubbs, 408 U. S. 204, 206–207, and n. 1.

2. A federal court may grant habeas relief to a state prisoner based on a claim adjudicated by a state court on the merits if the resulting decision is “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U. S. C. § 2254(d)(1). The Ninth Circuit erred when it held that federal law as interpreted by this Court “clearly” establishes that specific performance is constitutionally required here. Even assuming that the State violated the Constitution when it moved to amend the complaint, no holding of this Court requires the remedy of specific performance here, and thus the state court's decision cannot be “contrary to” clearly established law. Woods v. Donald, 575 U. S. 312, 317. Santobello v. New York, 404 U. S. 257, distinguished. Certiorari granted; 827 F. 3d 879, reversed and remanded.

Per Curiam.

The Antiterrorism and Effective Death Penalty Act of 1996 provides that a federal court may grant habeas relief to a state prisoner based on a claim adjudicated by a state court on the merits if the resulting decision is “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U. S. C. § 2254(d)(1). In this case, a California court permitted the State to amend a criminal complaint to which the respondent, Michael Cuero, had pleaded guilty. That guilty plea would have led to a maximum sentence of 14 years and 4 months. The court acknowledged that permitting the amendment would lead to a higher sentence, and it consequently permitted Cuero to withdraw his guilty plea. Cuero then pleaded guilty to the amended complaint and was sentenced to a term with a minimum of 25 years.

A panel of the Court of Appeals for the Ninth Circuit subsequently held that the California court had made a mistake of federal law. In its view, the law entitled Cuero to specific performance of the lower 14-year, 4-month sentence that he would have received had the complaint not been amended.

On October 27, 2005, the State of California charged Michael Cuero with two felonies and a misdemeanor. Cuero v. Cate, 827 F. 3d 879, 892–896 (CA9 2016). Its complaint alleged that on October 14, 2005, Cuero drove his car into, and seriously injured, Jeffrey Fieldman, who was standing outside of his parked pickup truck. Id., at 892–893. The complaint further alleged that Cuero was then on parole, that he was driving without a license, that he was driving under the in-fuence of methamphetamine, and that he had in his possession a loaded 9-millimeter semiautomatic pistol. Ibid.

Cuero initially pleaded “not guilty.” But on December 8, he changed his plea. A form entitled “PLEA OF GUILTY/ NO CONTEST—FELONY” signed by Cuero, the prosecutor, and the trial court memorialized the terms of Cuero's guilty plea. See id., at 915–917. On that form, Cuero pleaded guilty to the two felony counts. Ibid.; see Cal. Veh. Code Ann. § 23153(a) (West 2017) (causing bodily injury while driving under the influence of a drug); Cal. Penal Code Ann. § 12021(a)(1) (West 2005) (unlawful possession of a firearm). He also admitted that he had previously served four separate prison terms, including a term for residential burglary, which qualifies as a predicate offense under California's “three strikes” law. Cal. Penal Code Ann. § 667(a)(1) (West 2017); see Ewing v. California, 538 U. S. 11, 15–17 (2003). Finally,

Following a hearing, the state trial court accepted the plea and granted California's motion to dismiss the remaining misdemeanor charge. The court then scheduled the sen-tencing hearing for January 11, 2006.

Before the hearing took place, however, the prosecution determined that another of Cuero's four prior convictions qualified as a “strike” and that the signed guilty-plea form had erroneously listed only one strike. See Cal. Penal Code Ann. § 245(a)(1) (assault with a deadly weapon). This second strike meant that Cuero faced not a maximum punishment of just over 14 years (172 months), but a minimum punishment of 25 years. §§ 667(e)(2)(A)(ii), 1170.12(c)(2)(A)(ii).

The State asked the trial court for permission to amend the criminal complaint accordingly. It pointed to Cal. Penal Code § 969.5(a), which provides:

“Whenever it shall be discovered that a pending complaint to which a plea of guilty has been made under Section 859a does not charge all prior felonies of which the defendant has been convicted either in this state or elsewhere, the complaint may be forthwith amended to charge the prior conviction or convictions and the amendments may and shall be made upon order of the court.”

Cuero argued that the State's motion was untimely and prejudicial. But the trial court granted the motion. At the same time, the court permitted Cuero to withdraw his guilty plea in light of the change. It concluded that § 969.5(a) “guide[d]” its inquiry and was best read to refect a legislative determination that criminal complaints should charge all prior felony convictions. App. to Pet. for Cert. 178a. The court added that the case was distinguishable from “a situa-

Soon thereafter, California amended the complaint. The complaint as amended charged Cuero with one felony (causing bodily injury while driving under the influence of a drug under Cal. Veh. Code Ann. § 23153(a)), and it alleged two prior strikes. Cuero then withdrew his initial guilty plea and entered a new guilty plea to the amended complaint. On April 20, 2006, the trial court sentenced Cuero to the stipulated term of 25 years to life. His conviction and sentence were affirmed on direct appeal, and the California Supreme Court denied a state habeas petition.

Cuero then filed a petition for federal habeas relief in the United States District Court for the Southern District of California. The Federal District Court denied Cuero's petition, but the Court of Appeals for the Ninth Circuit reversed. 827 F. 3d 879.

The Ninth Circuit panel hearing the appeal held that the state trial court had “acted contrary to clearly established Supreme Court law” by “refusing to enforce the original plea agreement” with its 172-month maximum sentence. Id., at 888. It wrote that “[i]n this context, specific performance” of that plea agreement—i. e., sentencing Cuero to no more than the roughly 14-year sentence reflected in the 2005 guilty-plea form—was “necessary to maintain the integrity and fairness of the criminal justice system.” Id., at 890, n. 14. The Ninth Circuit denied rehearing en banc over the dissent of seven judges. Cuero v. Cate, 850 F. 3d 1019 (2017). The State then filed a petition for certiorari here.

The Ninth Circuit, in ordering specific performance of the 172-month sentence set forth on Cuero's original guilty-plea form, reasoned as follows. First, the court concluded that Cuero's guilty-plea form amounts to an enforceable plea agreement. 827 F. 3d, at 884–885. Second, that plea agreement amounts to, and should be interpreted as, a contract under state contract law. Id., at 883 (citing Ricketts v. Ad-amson, 483 U. S. 1, 5, n. 3 (1987)). Third, California contract law would consider the State's motion to amend the complaint as a breach of contract. 827 F. 3d, at 887–890. Fourth, “the remedy for breach must `repair the harm caused by the breach.' ” Id., at 890 (quoting People v. Toscano, 124 Cal. App. 4th 340, 20 Cal. Rptr. 3d 923, 927 (2004)). Fifth, rescission flailed to “ `repair the harm.' ” 827 F. 3d, at 891. Sixth, consequently Cuero was entitled to specific performance, namely, a maximum prison term of 172 months (14 years and 4 months). Ibid. And, seventh, the state court's contrary decision was itself “contrary to, or involved an un-

We shall assume purely for argument's sake that the State violated the Constitution when it moved to amend the complaint. But we still are unable to find in Supreme Court precedent that “clearly established federal law” demanding specific performance as a remedy. To the contrary, no “hold-in[g] of this Court” requires the remedy of specific performance under the circumstances present here. Harrington v. Richter, 562 U. S. 86, 100 (2011).

Two of our prior decisions address these issues. The first, Santobello v. New York, 404 U. S. 257 (1971), held that a defendant may not be bound to a plea agreement following a prosecutorial breach of an enforceable provision of such an agreement. Id., at 262. As relevant here, however, Chief Justice Burger wrote in the opinion for the Court that the “ultimate relief to which petitioner is entitled” must be left “to the discretion of the state court, which is in a better position to decide whether the circumstances of this case require only that there be specific performance of the agreement on the plea” or, alternatively, that “the circumstances require granting the relief sought by petitioner, i. e., the opportunity to withdraw his plea of guilty.” Id., at 263.

The Ninth Circuit cited a concurrence in Santobello by Justice Douglas, which added that “a court ought to accord a defendant's [remedial] preference considerable, if not controlling, weight inasmuch as the fundamental rights flouted by a prosecutor's breach of a plea bargain are those of the defendant, not of the State.” 827 F. 3d, at 891, n. 14 (quoting Santobello, supra, at 267). Three other Justices agreed with Justice Douglas on this point, and because only seven Justices participated in the case, the Ninth Circuit suggested that a four-Justice majority in Santobello seemed to favor looking to the defendant's preferred remedy. 827 F. 3d, at 891, n. 14 (citing Santobello, supra, at 268, and n. (Marshall,

There are several problems with the Ninth Circuit's reasoning below. First, “ `fairminded jurists could disagree' ” with the Ninth Circuit's reading of Santobello. Richter, supra, at 101 (quoting Yarborough v. Alvarado, 541 U. S. 652, 664 (2004)). Moreover, in Mabry v. Johnson, 467 U. S. 504 (1984), the Court wrote that “Santobello expressly declined to hold that the Constitution compels specific performance of a broken prosecutorial promise as the remedy for such a plea.” Id., at 510–511, n. 11 (citing Santobello, 404 U. S., at 262–263; id., at 268–269 (Marshall, J., concurring in part and dissenting in part)). The Court added that “permitting San-tobello to replead was within the range of constitutionally appropriate remedies.” 467 U. S., at 510, n. 11. Where, as here, none of our prior decisions clearly entitles Cuero to the relief he seeks, the “state court's decision could not be `contrary to' any holding from this Court.” Woods v. Donald, 575 U. S. 312, 317 (2015) (per curiam ) (quoting Lopez v. Smith, 574 U. S. 1, 6 (2014) (per curiam )). Finally, as we have repeatedly pointed out, “circuit precedent does not constitute `clearly established Federal law, as determined by the Supreme Court.' ” Glebe v. Frost, 574 U. S. 21, 24 (2014) (per curiam ) (quoting 28 U. S. C. § 2254(d)(1)). Nor, of course, do state-court decisions, treatises, or law review articles.

For all these reasons, we conclude that the Ninth Circuit erred when it held that “federal law” as interpreted by this

The petition for a writ of certiorari and respondent's motion to proceed in forma pauperis are granted. We reverse the judgment of the United States Court of Appeals for the Ninth Circuit and remand the case for further proceedings consistent with this opinion.

It is so ordered.