                 FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


CANDACE L. FOX,                      No. 13-56704
      Petitioner-Appellant,
                                       D.C. No.
            v.                   2:04-cv-06933-AG-SS

DEBORAH K. JOHNSON,
      Respondent-Appellee.              OPINION


     Appeal from the United States District Court
        for the Central District of California
     Andrew J. Guilford, District Judge, Presiding

               Argued March 5, 2015
              Submitted August 1, 2016
                Pasadena, California

                 Filed August 8, 2016

     Before: Stephen Reinhardt, N. Randy Smith,
      and Andrew D. Hurwitz, Circuit Judges.

           Opinion by Judge N.R. Smith;
           Concurrence by Judge Hurwitz;
            Dissent by Judge Reinhardt
2                         FOX V. JOHNSON

                           SUMMARY*


                          Habeas Corpus

   The panel affirmed the district court’s denial of a
California state prisoner’s habeas corpus petition challenging
her conviction for first-degree murder and first-degree
burglary.

    The petitioner pleaded guilty to second-degree murder
and, pursuant to a plea agreement, was sentenced to fifteen
years to life imprisonment. She later successfully petitioned
to withdraw her guilty plea after establishing that the
sentencing court failed to inform her that she would receive
a mandatory term of lifetime parole as a direct consequence
of her plea. At her subsequent trial, she was convicted of
first-degree murder and first-degree burglary and was
sentenced to life imprisonment without the possibility of
parole.

    In her federal habeas petition, the petitioner sought
specific performance of an alleged plea agreement in which
the state promised her a term of imprisonment no greater than
seven and one-half years in exchange of her plea. The panel
held that because the petitioner chose in the state habeas
proceedings to seek vacation of her conviction, rather than
specific performance of the purported plea agreement, she
had no due process right to specific performance of the
rescinded agreement.


  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                      FOX V. JOHNSON                        3

    Concurring, Judge Hurwitz wrote that the case was
troubling and that, having had a hand in producing an
outcome that disfavored the one defendant who cooperated
with the prosecution, the state could remedy the situation
either through clemency or by once again offering the
petitioner the chance to plead guilty to second-degree murder.

    Dissenting, Judge Reinhardt wrote that the proceeding
was fundamentally unfair, and due process required specific
performance of the plea agreement and vacation of the
petitioner’s unconstitutional sentence of life without the
possibility of parole.


                        COUNSEL

Michael Parente (argued), Assistant Federal Public Defender;
Sean K. Kennedy, Federal Public Defender; Federal Public
Defender’s Office, Los Angeles, California; for Petitioner-
Appellant.

David Wildman (argued) and Jason Tran, Deputy Attorneys
General; Lance E. Winters, Senior Assistant Attorney
General; Kamala D. Harris, Attorney General; Office of the
Attorney General, Los Angeles, California; for Respondent-
Appellee.
4                      FOX V. JOHNSON

                          OPINION

N.R. SMITH, Circuit Judge:

     Candace Lee Fox pleaded guilty to second-degree murder
in 1984 in California Superior Court and, pursuant to a plea
agreement, was sentenced to a term of imprisonment of
fifteen years to life. Approximately five years later, Fox
successfully petitioned to withdraw her guilty plea after
establishing that the sentencing court failed to inform her that
she would receive a mandatory term of lifetime parole as a
direct consequence of her plea. At her subsequent trial, Fox
was convicted of first-degree murder, first-degree burglary,
and the special circumstance that the murder was committed
in the course of a burglary. She was sentenced to life
imprisonment without the possibility of parole. In this
28U.S.C. § 2254 habeas proceeding, Fox now argues that the
State originally promised her a term of imprisonment no
greater than seven and one-half years in exchange for her
plea, and asks for specific performance of that purported
agreement.

    We refuse Fox’s request and affirm the district court,
because Fox chose in the state habeas proceedings to seek
vacation of her conviction, rather than specific performance
of the purported plea agreement. She therefore has no due
process right to specific performance of the rescinded
agreement.

               FACTUAL BACKGROUND

   In June 1984, Fox, Janet Meyer, Scott Peters, and Eddie
Rangel drove to Lewis Levy’s apartment to collect $100 that
Levy allegedly owed Meyer for sexual services. Meyer told
                      FOX V. JOHNSON                         5

the others that Levy had $20,000 to $30,000 in travelers
checks in his apartment. The group forced their way into the
apartment and held Levy at gunpoint while they searched for
cash and travelers checks. After they found Levy’s wallet and
$20,000 in travelers checks, Meyer and Rangel departed to
purchase cocaine, leaving Fox and Peters with Levy.

    Levy took this opportunity to run for the door. Peters
struck Levy over the head with the barrel of his revolver until
the handle broke. Peters then attempted to shoot Levy, but his
gun jammed. Fox handed Peters a large steak knife from
Levy’s kitchen. Peters attempted to stab Levy twice, but the
blade bent and did not penetrate. At that point, Levy fell to
the ground nearly unconscious. When Meyer and Rangel
returned with the cocaine, Levy remained semiconscious on
the ground. After Rangel left, Peters explained to Meyer that
Levy had tried to escape.

    After Fox, Peters, and Meyer used the cocaine, Meyer
stated that she was not leaving the apartment until Levy was
dead. Meyer took a Swiss Army knife from her pocket and
repeatedly stabbed Levy. Fox struck Levy over the head with
a beer bottle, and Peters attempted to strangle Levy with a
phone cord. Nonetheless, Levy was still alive. Peters then left
the apartment and waited in Fox’s car. Twenty minutes later,
Fox and Meyer left the house with two shopping bags
containing the gun and knives used in the attack. They told
Peters that Levy was dead.

   The next day, the group cashed several of Levy’s travelers
checks and purchased drugs. The following morning, Meyer’s
roommate called the police after overhearing an argument
between Meyer and Fox about the murder. The police
questioned Meyer, who disclosed the location of Levy’s
6                         FOX V. JOHNSON

body. After further investigation, the police arrested Fox,
Meyer, and Peters.

              PROCEDURAL BACKGROUND

A. Fox’s Guilty Plea and Sentence

    Fox, Meyer, and Peters were charged with first-degree
murder, first-degree burglary and robbery, and the special
circumstances of (a) murder during the commission of a
robbery and burglary and (b) use of a deadly weapon in the
murder, making them eligible for the death penalty. Fox
agreed to plead guilty to second-degree murder1 in exchange
for testifying against Peters.2

    The plea agreement was not reduced to writing. Fox
argues that she was promised she “would be paroled after
serving 7.5 years with good behavior.” The State contends
that Fox was promised she would be sentenced to fifteen
years to life in prison, but would be eligible for parole
consideration after seven and one-half years. Fox’s change of
plea hearing on November 6, 1984, supports the State’s
contention:

         PROSECUTOR: By way of sentence
         . . . you’re going to receive—as we discussed,


    1
    When Fox pleaded guilty, second-degree murder in California was
subject to a mandatory minimum of fifteen years to life. Cal. Penal Code
§ 190(a).
    2
   On November 9, 1984, Fox testified for nearly five hours at Peters’s
preliminary hearing. Peters later pleaded guilty to second-degree murder.
Meyer also pleaded guilty to second-degree murder.
                       FOX V. JOHNSON                          7

        you’re going to receive 15 years to life on this
        case. Do you understand that?

        FOX: Yes.

        PROSECUTOR: That is the sentence for
        second degree murder. There are no
        enhancements. It’s a straight second degree
        and you’re going to receive a sentence from
        [the court] of 15 years to life.

        FOX: Yes.

        PROSECUTOR: And do you understand that
        it’s up to you how much time you will do. It’s
        indeterminate. We can make no promises or
        representations on what the Board of Prison
        Terms will or will not do or when they will
        release you. There is a life-time top. Do you
        understand that?

        FOX: Yes.

After being so advised, Fox pleaded guilty. The court
accepted her plea as knowing and voluntary. There is thus no
contest that Fox agreed to a sentence of fifteen years to life.
But, Fox was not advised during the plea colloquy that she
also faced a lifetime term of parole when released.

     At the sentencing hearing, Fox’s counsel asked for a
continuance to amend the probation report. The court
responded: “I don’t understand exactly what you’re doing
here, Mr. Ficht. She is going to receive a sentence of fifteen
to life, is that correct? Fifteen to life, and that’s going to be
8                      FOX V. JOHNSON

her sentence.” In response, Ficht stated that Fox’s probation
report was “the most outrageous document I’ve seen.” The
court told Ficht to “file an amendment. She’s going to be
there for quite awhile. I don’t understand what the difference
is. She should get going. She’s losing time.” Any parole
consideration was only discussed during the following
exchange:

        FICHT: Also, if I may, for the record, Your
        Honor, I believe the People have indicated as
        part of the plea bargain that [Fox would] be
        looking at obtaining probation—parole,
        excuse me, in seven and a half years. Is that
        correct, [prosecutor]?

        PROSECUTOR: That’s correct.

        TRIAL COURT: All right. Understand that?

    Fox now argues that this exchange “modified the plea
agreement” to require that she be paroled after seven and one-
half years in prison. However, neither the parties nor the court
acknowledged any modification of the plea agreement at the
hearing. Following the exchange between Ficht and the
prosecutor, the court sentenced Fox to fifteen years to life in
state prison without any reference to parole eligibility or
release on parole, stating: “All right. Miss Fox, the court has
read and considered the probation report. Probation is denied.
You are sentenced to the state prison for the term prescribed
by law, which in this case is fifteen years to life.” Fox did not
object.
                       FOX V. JOHNSON                         9

B. Post-Conviction Proceedings

    On July 1, 1986, Fox filed her first petition for a writ of
habeas corpus in state Superior Court. Rather than seeking
specific performance of the alleged plea agreement, Fox
instead sought to withdraw her plea of guilty on two grounds.

    First, Fox alleged that, when she entered her plea, she
“did not understand that her term could exceed seven and
one-half years even if her prison behavior were good.”
Instead, Fox claimed that she believed that she was “entitled
to release after seven and one-half years, provided that she
behaved properly in state prison.” Fox acknowledged that
such a belief was contrary to California law, because a
petitioner “is not entitled to release after serving the
minimum period of incarceration.” Fox also acknowledged
that “no firm promise . . . was given [to her] before her actual
sentencing” as to eligibility for parole in seven and one-half
years. However, Fox maintained (citing the portion of the
sentencing proceedings excerpted above) that the “the parties
understood that if [Fox] was cooperative and fully truthful in
her testimony, she would be eligible for parole after 7 1/2
years . . . and in fact would receive parole if she behaved
herself in state prison.” Fox also argued that, before entering
her plea, she “was not advised of the mandatory post-
incarceration parole term.” Fox asserted that, had “she known
the full consequences of her guilty plea, she would not have
pled guilty.”

    Second, Fox asserted that she had received ineffective
assistance of counsel during the plea process and that she was
10                         FOX V. JOHNSON

“not in fact guilty of second degree murder.”3 Fox argued that
her previous attorney “erroneously” told her that, if she went
to trial, she could not use a defense of duress; her new
counsel, on the other hand, assured her that she “had a good
defense of duress.” Fox argued that her former attorney failed
to “comprehend and/or advise her of the defenses available”
and that she entered her plea after “rel[ying] upon [such]
erroneous lega1 advice.” The Superior Court denied this first
habeas petition, citing the guilty plea transcript.

    On August 26, 1986, Fox filed a second petition in the
Court of Appeal, alleging “that her sentencing was unlawful
and the matter should be remanded for resentencing.” In this
petition, Fox repeatedly insisted that she sought “withdrawal
[of] her plea of guilty,” making the same arguments as those
in her Superior Court petition. On September 4, 1986, the
Court of Appeal denied the petition as not ripe, because Fox
had not yet served seven and one-half years in prison.

    On January 24, 1989, after serving just over four and one-
half years in prison, Fox filed a third habeas petition in the
state Superior Court. The arguments echoed those in her
previous petitions. Fox asked to withdraw her guilty plea,
asserting that it was not voluntary and that her counsel was
ineffective. Fox also argued that (1) newly discovered
evidence exonerated her of the murder;4 (2) defense counsel


 3
   The dissent states that Fox “never seriously denied her guilt.” Dissent
60. However, Fox specifically claimed in her first habeas petition that “she
[was] not in fact guilty of [the] offense and was unaware of [the defense
of duress] at the time she entered her plea.”
  4
    Fox also alleged that she received letters from Peters, in which he took
full responsibility for the murder.
                       FOX V. JOHNSON                        11

failed to throughly investigate and advise her regarding a
viable duress defense; (3) she was not advised of a mandatory
parole term after incarceration and “would not have entered
a guilty plea if she had known of this lifetime parole”; and
(4) she did not understand that her period of confinement
would exceed seven and one-half years with good prison
behavior. Importantly, this petition again did not seek specific
performance of the alleged plea agreement. On October 13,
1989, the Superior Court granted the habeas petition, setting
aside Fox’s conviction and granting her a new trial on the
basis that she had not been informed before entering the plea
that she faced lifetime parole. The court did not address Fox’s
other arguments.

    On November 26, 1990, shortly before the new trial was
to begin, Fox filed a motion seeking, for the first time, to
enforce the previous plea agreement as she understood
it—that is, assuring release after seven and one-half
years—or, in the alternative, preventing the State from
seeking more than a second-degree murder conviction at trial.
The State argued that, because Fox had successfully
withdrawn her plea of guilty, there was no plea agreement to
enforce. The Superior Court denied “specific performance of
the original case settlement.”

     Fox was tried on the original charges of first-degree
murder, first-degree burglary, and the special circumstance
that the murder was committed in the course of a burglary.
On January 28, 1992, the jury returned guilty verdicts on all
charges. On May 13, 1992, Fox again requested that the court
order specific performance of her prior plea bargain, arguing
she was entitled to eligibility for parole in seven and one-half
years. On May 29, 1992, the court denied the motion and
12                         FOX V. JOHNSON

sentenced Fox to life imprisonment without the possibility of
parole.

     Fox appealed, asserting, among other things, that “the
trial court erred in denying appellant’s motions for specific
performance of her plea bargain,” citing Santobello v. New
York, 404 U.S. 257 (1971), for the proposition that specific
performance is a remedy for breach of a plea agreement.5 On
March 30, 1994, the California Court of Appeal affirmed
Fox’s conviction. The court concluded that Fox was not
entitled to specific performance of her plea bargain, stating
that:



  5
   The dissent states that the State changed its position at this point and
“admitted for the first time that, pursuant to the plea agreement, Fox was
to serve ‘about 7 1/2 years.’” Dissent 36. We disagree with this
characterization of the State’s argument.

     From the beginning, the State has maintained that the parties
bargained for a sentence of fifteen years to life for second-degree murder.
The State has conceded that, pursuant to the plea agreement, Fox would
be eligible for parole after seven and one-half years, though the only
evidence in the record of such a promise was the exchange between Fox’s
counsel and the prosecutor at the sentencing hearing. The State has also
argued that, notwithstanding such a promise, the minimum parole
eligibility under California case law for Fox’s sentence was ten years, and
thus a promise of eligibility before that time would have been
unenforceable.

     Before the California Court of Appeal, the State argued that the plea
agreement was no longer enforceable because Fox had withdrawn her
plea. The statement in the State’s brief that, “pursuant to the plea
agreement, [Fox] would serve about 7 1/2 years” was not, as the dissent
puts it, evidence that the State had previously lied, but rather a shorthand
version of the plea agreement between the parties. The California Court
of Appeal then based its decision on the State’s statement in its brief.
                            FOX V. JOHNSON                                13

         When Fox pled guilty in 1984, she got what
         she bargained for, a sentence of 15 years to
         life, with a promise of parole in seven and
         one-half years. Five years into her sentence
         (with only two and one-half years to go), Fox
         decided she didn’t like the deal she’d made,
         petitioned for a writ of habeas corpus and
         succeeded in having her plea set aside, on the
         ground she had not been fully advised of the
         consequences of her guilty plea (her
         alternative ground of duress was rejected).
         She clearly felt very strongly that the
         obligation of a lifetime on parole was not
         something she could accept . . . . She got
         exactly what she asked for—her plea was set
         aside and the People were required to prove
         the charges against her.[6]




  6
     The Court of Appeal acknowledged “the inevitability of a habeas
petition attacking the competency of the attorney who filed the petition to
set aside Fox’s guilty plea.” However, it noted that such a claim would
necessarily require “an evidentiary hearing to determine what Fox’s
attorneys told her at the time the decision was made to attack the guilty
plea [given that she had already served over four years of her sentence].”
Thus, such a “petition should be addressed to the trial court, not to us.”

      The Court of Appeal concluded that Fox received “a sentence of 15
years to life, with a promise of parole in seven and one-half years,” and
thus “got what she bargained for.” However, as Fox acknowledged in her
first habeas petition, she was not entitled to parole after seven and one-half
years under her original sentence. This error is not consequential, because
the Court of Appeal’s ultimate conclusion—that Fox “got exactly what she
asked for” when her habeas petition was granted and the original
conviction set aside—is correct.
14                    FOX V. JOHNSON

Fox then filed a petition for review in the California Supreme
Court, which was summarily denied on June 30, 1994.

    On April 22, 1997, Fox filed a new habeas petition in the
Superior Court, which was denied on May 14, 1997. Fox filed
another habeas petition in the Court of Appeal on April 23,
1998. On July 24, 1998, that court remanded for an
evidentiary hearing on whether Fox received ineffective
assistance of counsel in connection with the habeas petition
that resulted in her guilty plea being withdrawn. The Superior
Court “cabined” its inquiry to the question of whether counsel
had advised Fox that, if she successfully withdrew her plea,
she could face a new trial and a longer sentence, including a
potential life sentence without the possibility of parole.
During the two-day hearing, Fox’s habeas counsel, Rowan
Klein, testified that he had advised Fox that, if her habeas
petition were granted, she would go back to square one and
face the possibility of a sentence of life without parole. When
asked if he considered seeking specific enforcement of the
original plea bargain prior to seeking to withdraw the plea,
Klein responded,

       I’m sure I did but . . . [the reference to
       obtaining parole in seven and a half years
       wasn’t] a plea bargain because it’s an attorney
       uttering incompetent words at the time of
       sentencing. It’s not something that is legally
       binding on The Court or the District Attorney,
       unfortunately. I mean, you can try and turn it
       into that through alliance and whatever, but,
       legally, it probably isn’t the strongest
       argument. And that’s why I sought relief on
       the stronger argument, which was the failure
       to advise her of the parole consequences. . . .
                      FOX V. JOHNSON                        15

       My assessment was that the comments of
       Bruce Ficht [Fox’s counsel at sentencing] are
       . . . an indication that he didn’t know what he
       was taking about . . . with respect to the
       meaning of a 15-to-life sentence. To me, a
       plea bargain is when the parties may have a
       discussion at the time of the plea, not when an
       attorney makes a gratuitous comment at the
       time of sentencing.

    The Superior Court denied Fox’s petition, finding that she
had been advised prior to the 1989 grant of habeas “of all the
possible ramifications that were legally available,
including—and it may even have been the death penalty—but
certainly the option of life without the possibility of parole;
that she’d go back to square one.”

    On February 9, 2001, Fox filed a new habeas petition in
the California Court of Appeal, which was denied without
explanation or citation to authority on August 15, 2001. On
November 24, 2003, Fox filed a habeas petition in the
California Supreme Court, which was denied on July 14,
2004, in an order stating: “Petition for writ of habeas corpus
is DENIED. (See In re Robbins (1998) 18 Cal.4th 770, 780.).”

    Fox filed a pro se 28 U.S.C. § 2254 habeas petition in the
district court on August 13, 2004, claiming that the state
courts denied her due process rights by failing to specifically
enforce her 1984 plea agreement. A magistrate judge
ultimately recommended denying the petition, noting that Fox
had “successfully moved to withdraw her guilty plea before
she was eligible for release on parole; therefore, the State
could not have actually breached the parole agreement in the
manner petitioner claims.” The district court adopted the
16                   FOX V. JOHNSON

report and recommendation, denied the petition, and issued a
certificate of appealability on the question of the specific
performance of Fox’s 1984 plea agreement. This appeal
timely followed.

               STANDARD OF REVIEW

    The district court’s denial of a petition for a writ of
habeas corpus is reviewed de novo. Jones v. Taylor, 763 F.3d
1242, 1245 (9th Cir. 2014). “[A] federal district court’s
findings and its adoption of the findings of a federal
magistrate judge are reviewed under the clearly erroneous
standard.” Sanders v. Ratelle, 21 F.3d 1446, 1452 (9th Cir.
1994).

    Under the Anti-Terrorism and Effective Death Penalty
Act (“AEDPA”), a federal court may not grant a habeas
petition filed by a person in state custody:

       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). However, where “no state court has
adjudicated [the] claim on the merits, and the state has
established no procedural bar to its consideration, the
                      FOX V. JOHNSON                        17

strictures of 28 U.S.C. § 2254(d) do not apply, and our review
is de novo.” Riley v. McDaniel, 786 F.3d 719, 723 (9th Cir.
2015); see also Chaker v. Crogan, 428 F.3d 1215, 1221 (9th
Cir. 2005) (applying de novo standard of review to a claim in
a habeas petition that was not adjudicated on the merits by the
state court); Lewis v. Mayle, 391 F.3d 989, 996 (9th Cir.
2004) (same).

    AEDPA applies “to a single state court decision, not to
some amalgamation of multiple state court decisions.” Barker
v. Fleming, 423 F.3d 1085, 1093 (9th Cir. 2005). “When
more than one state court has adjudicated a claim, we analyze
the last reasoned decision.” Id. at 1091 (citing Ylst v.
Nunnemaker, 501 U.S. 797, 803–04 (1991)). Under Ylst, we
only look through the last state court decision to a prior
decision on the merits if the last decision is unreasoned, that
is, if the decision “does not disclose the reason for the
judgment.” 501 U.S. at 802; see also Castellanos v. Small,
766 F.3d 1137, 1145 (9th Cir. 2014) (“[A] state supreme
court’s summary denial of discretionary review, which
generally does not state a reason for that denial, is not a
‘reasoned’ decision under AEDPA, and we must ‘look
through’ that unexplained decision to the last court to have
provided a ‘reasoned’ decision.”).

    The last “reasoned” decision here was the California
Supreme Court’s 2004 order denying Fox’s habeas petition
with a citation to In re Robbins, 18 Cal. 4th 770, 780 (1998).
However, the citation to Robbins indicated that the decision
rested on the untimeliness of Fox’s petition, not on the merits
of her constitutional claims. See Walker v. Martin, 562 U.S.
307, 313 (2011) (“A summary denial citing . . . Robbins
means that the petition is rejected as untimely.”). The State
has now waived the affirmative defense of procedural default
18                     FOX V. JOHNSON

that formed the basis of the 2004 California Supreme Court’s
reasoned decision. The last reasoned decision on the merits of
Fox’s current claims is the affirmance of her conviction on
direct appeal by the California Court of Appeal in 1994.

    The State urges that we apply AEDPA deference to the
1994 Court of Appeal decision. But, we need not decide that
issue. We may “deny writs of habeas corpus under § 2254 by
engaging in de novo review when it is unclear whether
AEDPA deference applies, because a habeas petitioner will
not be entitled to a writ of habeas corpus if his or her claim is
rejected on de novo review.” Berghuis v. Thompkins,
560 U.S. 370, 390 (2010). We conclude that, even under de
novo review, Fox cannot prevail.

                        DISCUSSION

    Fox claims she has a due process right to specific
performance of her original plea deal, in which she alleges
the State promised to release her from prison after seven and
one-half years. For purposes of our analysis, we assume
(without deciding) that the State promised Fox release after
seven and one-half years and that the State breached that
promise. Nevertheless, Fox is not entitled to specific
performance of her plea agreement, because she voluntarily
chose to withdraw her guilty plea, thereby voiding her plea
agreement. There is thus no plea agreement to enforce. Under
these circumstances, there is no precedent suggesting that Fox
was denied due process by denying her specific performance.

    As the Court of Appeal observed, Fox’s successful habeas
petition sought only to withdraw her guilty plea as not
knowing and voluntary, rather than to enforce a plea
agreement. At no point in the habeas proceedings, which
                      FOX V. JOHNSON                       19

culminated in the state court’s order allowing Fox to
withdraw her plea, did Fox seek to enforce the plea
agreement; rather, she sought to set it—and the
accompanying guilty plea—aside. Although Fox argued that
she was serving a longer sentence than she expected, she
advanced that argument solely to show that she was not
advised of the extent of the sentence she would serve if she
pleaded guilty. She simultaneously argued both her actual
innocence and that the plea was invalid because she was
never informed of the possibility of a parole term following
release. The record indicates that Fox sought to withdraw her
plea so that she could assert defenses to the charges against
her. Indeed, Fox’s habeas counsel testified he made a
strategic decision not to seek to enforce the alleged plea
agreement. Fox did not attempt, until the eve of her trial, to
hold the State to the deal she believed it made with her.

    Fox’s current petition rests on the theory that a criminal
defendant has a due process right to bind the government to
a plea agreement even after choosing to withdraw the plea
rather than seek specific performance of the plea agreement.
Fox identifies no precedent recognizing that right, nor have
we found any. Indeed, the weight of persuasive precedent
cuts the other way. We have instead explained that “[w]hen
the district court exercises its power under the Federal Rules
to reject a plea agreement or permit a defendant to withdraw
his plea, it is clear by implication that the parties are
consequently released from their obligations under the plea
agreement.” United States v. Partida-Parra, 859 F.2d 629,
634 n.6 (9th Cir. 1988). Moreover, a defendant who “chose
of his own accord to challenge an aspect of the proceedings
against him, . . . [takes] a calculated risk of” having the
original charges reinstated. Taylor v. Kincheloe, 920 F.2d
599, 603–04 (9th Cir. 1990). The Sixth Circuit has come to
20                         FOX V. JOHNSON

the same conclusion, holding that when a defendant succeeds
in withdrawing a guilty plea entered pursuant to a plea
agreement, the plea agreement is “nullified” and “the
government [is] no longer bound by its promises therein.”
United States v. Jones, 469 F.3d 563, 566 (6th Cir. 2006). In
the course of discussing prosecutorial vindictiveness, the
Fifth Circuit noted “[we] see no distinction between a
defendant’s refusal to plead guilty and a defendant’s
successful withdrawal of a guilty plea . . . . In both
circumstances the defendant has, in essence, refused the
Government’s offer of a plea and exercised his right to force
the Government to prove its case.” United States v. Saltzman,
537 F.3d 353, 361 (5th Cir. 2008). Fox rescinded her plea
agreement; there was nothing left to enforce.7

    Fox urges us to apply state contract law. See United States
v. Barron, 172 F.3d 1153, 1158 (9th Cir. 1999) (en banc)
(“[W]e have frequently analyzed plea bargains on contract
principles.”). However, doing so does not aid her. Under
California law, “[r]escission extinguishes a contract,
rendering it void ab initio, as if it never existed.” DuBeck v.
Cal. Physicians’ Serv., 184 Cal. Rptr. 3d 743, 750 (Ct. App.
2015). By obtaining a writ of habeas corpus nullifying her
plea as not knowing and voluntary, Fox also nullified her plea
agreement. Whatever terms were in that agreement are no
longer operative.8

     7
     Fox does not claim prosecutorial vindictiveness in this habeas
proceeding.
 8
   There are limits to the analogy to contract law: “A plea bargain is not
a commercial exchange. . . . On rescission of the agreement, the prisoner
can never be returned to his ‘original position’: he has served time by
reason of his guilty plea and his surrender of basic constitutional rights.”
Barron, 172 F.3d at 1158. In that case, which involved a 28 U.S.C. § 2255
                            FOX V. JOHNSON                                21

    In Santobello v. New York, the Supreme Court held that
the remedies for a breach of a plea agreement were either
specific performance of the agreement or rescission of the
entire agreement and withdrawal of the guilty plea, to be
determined by the state court based on what “the
circumstances of [the] case require.” 404 U.S. 257, 263
(1971). Where rescission is unable to repair the harm done by
the government’s breach, and where the defendant has upheld
her end of the bargain, we have held that “specific
performance [is] the only viable remedy.” Brown v. Poole,
337 F.3d 1155, 1161 (9th Cir. 2003). Indeed, we have
mandated specific performance as a remedy even where the
sentence the prosecutor promised to a defendant was not a
sentence allowed for under state law. Buckley v. Terhune,
441 F.3d 688, 699 (9th Cir. 2006) (en banc).

    But, here, rather than seek specific performance, Fox
chose to withdraw her guilty plea, voiding the plea
agreement. She sought one of the remedies under Santobello,
and received it.9 Even if she had sought specific performance,


petition, this court sitting en banc refused to require a retrial, that is to
completely void the guilty plea, when one of the counts of conviction later
turned out to be unlawful. Id. at 1161. However, Barron turned on an
interpretation of the scope of the relief available under § 2255. Id. at 1159.
Fox seeks relief under § 2254. Thus, we are called on to determine what
due process requires, not what relief Fox might be afforded were she a
federal prisoner.
 9
   Our recent decision in Cuero v. Cate, —F.3—, 2016 WL 3563660 (9th
Cir. 2016), is not to the contrary. In Cuero, the defendant had pleaded
guilty pursuant to a written plea agreement. The day before sentencing, the
State moved to amend the complaint in a manner that would substantially
increase the defendant’s sentence. The Superior Court granted the motion
and allowed the defendant to withdraw his guilty plea. The defendant
argued in his subsequent habeas petition that the State had breached the
22                         FOX V. JOHNSON

Santobello “leave[s] to the discretion of the state court”
whether the circumstances of the case require specific
performance or an opportunity to withdraw the plea. 404 U.S.
at 263. No binding Supreme Court decision finds a
constitutional violation when a state court chooses the remedy
a petitioner expressly chose or when she maintains her
innocence of the original charges. Nor does any decision of
which we are aware find that a state court abuses its
discretion by declining to enforce a plea agreement which
would impose a term of parole to which the defendant claims
she was never made aware and to which she steadfastly
objects.

    Fox now asserts that rescission of the plea agreement
(1) was forced by the State’s breach and (2) she never waived
her right to assert a breach of the plea agreement. We have
found no authority, and Fox cites none, to support her first


plea agreement and sought specific performance. The panel granted the
petition, finding that permitting the defendant to withdraw his guilty plea
was not an adequate remedy and that the Superior Court unreasonably
failed to apply principles of California contract law to the plea agreement.

    Unlike the defendant in Cuero, Fox opted not to seek specific
performance in her first habeas petition. Therefore, the Superior Court
here did not fail to reasonably apply the principles of California contract
law when it granted Fox the very remedy she requested.

     The dissent disagrees with our characterization of Cuero, stating that
“[h]ere, as in Cuero, the state breached its agreement, and here, as in
Cuero, the breach resulted in the withdrawal of the plea agreement.”
Dissent 59. This is incorrect. Nowhere in Fox’s first habeas petition did
she seek specific performance or argue that the government had breached
the agreement. Instead, from the outset, Fox sought to withdraw her plea,
arguing that “she did not understand” the terms of the agreement and that
her lawyer had provided ineffective assistance. In short, Fox got exactly
what she requested. Cuero did not.
                       FOX V. JOHNSON                        23

contention. In any event, the State did not coerce Fox to seek
to withdraw her plea, rather than seek to enforce the alleged
agreement. Rather, the State steadfastly maintained that Fox
was entitled to no relief at all. At the time Fox sought state
habeas relief, Santobello was the law of the land. Nothing
prevented Fox, acting with the assistance of counsel, from
seeking specific performance. Yet, she chose not to do so; her
counsel, whose effectiveness is not today at issue, testified
that he considered but rejected that option.

    Fox maintains that, even after withdrawing her plea, she
had a due process right to assert a breach of the plea
agreement, and this right was never waived. We agree that
Fox had a constitutional right to enforce the plea agreement,
see Doe v. Harris, 640 F.3d 972, 975 (9th Cir. 2011) (en
banc), and that a waiver of a constitutional right must be
knowing and voluntary, see Schell v. Witek, 218 F.3d 1017,
1023 (9th Cir. 2000). But “even constitutional rights can be
waived if not timely asserted.” Hill v. Blind Indus. & Servs.
of Md., 179 F.3d 754, 758 (9th Cir. 1999). If there were a
time for Fox to assert a breach of her plea agreement, it was
before the guilty plea was withdrawn and the agreement was
rescinded.

    By the time Fox sought specific performance, the plea
agreement had been rescinded. We confronted similar
circumstances in United States v. Burdeau, 168 F.3d 352 (9th
Cir. 1999). In Burdeau, the defendant entered into a plea
agreement that specified he was to receive a maximum of ten
years’ imprisonment on a robbery count and would have a
gun charge dismissed. Id. at 355. The defendant later
withdrew his plea and asserted a new defense to the charges.
Id. After the district court ruled that the defense was
unavailable, the defendant sought to reinstate his original plea
24                     FOX V. JOHNSON

deal. Id. The State refused, and we held that the district court
was not required to reinstate the plea. Id. at 358. Burdeau
stands for the proposition that, once a plea agreement is
rescinded, the State need not reoffer the same terms, and the
trial court is not required to enforce the agreement’s now-
defunct provisions.

    We agree with our dissenting colleague that the
circumstances of this case are unfortunate. The others
convicted of the offense for which Fox is serving a life
sentenced received lesser terms, and she kept her promise of
cooperation to the State. Indeed, she would have been better
off had the state court never granted her habeas petition; she
would at least now be eligible for parole. But she chose to
rescind a plea agreement that treated her as well as her co-
defendants, despite her counsel’s advice that this could return
her to ground zero. No Supreme Court authority or other
precedent establishes that the Due Process Clause requires the
enforcement of a plea agreement under these circumstances.
Accordingly, the district court did not err in denying Fox’s
§ 2254 petition.

     AFFIRMED.



HURWITZ, Circuit Judge, concurring:

    Candace Fox committed a gruesome and senseless crime.
She was ultimately convicted of first-degree murder, and does
not argue in this § 2254 proceeding that she did not receive a
fair trial.
                       FOX V. JOHNSON                        25

    Nonetheless, as both Judge Smith and Judge Reinhardt
note, this is a troubling case. Fox originally pleaded guilty to
second-degree murder in exchange for her testimony against
a co-defendant. She held up her end of the bargain, testifying
for five hours in a preliminary hearing. Yet both that co-
defendant and another received lesser sentences than the one
Fox is now serving. Moreover, the record of the plea
bargaining process is, to put it charitably, a mess. At one
point the record suggests that Fox was promised release from
prison after seven and one-half years, and at another reflects
that Fox was clearly advised that her sentence was
indeterminate, and that the parole board would ultimately
decide when she would be released.

    But, all this became moot when the superior court granted
Fox’s habeas petition, setting aside her guilty plea and
conviction. That is the remedy she repeatedly sought.
Indeed, her habeas counsel testified that he thought about
seeking specific performance of the purported plea
agreement, but decided against it. That decision was
motivated by the lack of clarity about precisely what the
purported deal was; although we have assumed today that the
State promised Fox release after seven and one-half years
with good behavior, the record does not clearly establish that
the agreement entitled Fox to release, rather than only parole
consideration.

    Fox does not today urge that she received ineffective
assistance of counsel in the state habeas proceedings, and the
state courts have found that she did not. Indeed, the record
suggests that, when she sought habeas relief, Fox was
unwilling to accept the original bargain. She claimed that she
never would have pleaded guilty had she known of the
required term of lifetime parole upon release, and asserted
26                        FOX V. JOHNSON

actual innocence. The State might well have chosen in the
interests of justice to proceed only with second-degree
murder charges against Fox on retrial. But, as Judge Smith
explains, its decision not to do so was not unconstitutional.
Still, having had a hand in producing an outcome that
disfavored the one defendant who cooperated with the
prosecution, the State could remedy this situation either
through clemency or by once again offering Fox the chance
to plead guilty to second-degree murder. But, we cannot
order such relief; our role in this matter is constrained.1 In a
§ 2254 habeas petition, we are limited to determining whether
the Constitution was violated. Judge Smith clearly explains
why it was not, and I concur in his opinion in full.



REINHARDT, Circuit Judge, dissenting:

     Candace Fox’s crime was not a pretty one. Yet, in 1984,
California made her a promise in exchange for her promise of
consideration it badly wanted from her. It promised her that,
if she testified against her co-defendant and pleaded guilty to
second degree murder, she would be paroled, assuming good
behavior, in seven and one-half years. If the State had kept
its word, Fox would have been released from prison over two
decades ago. Instead, because the State brazenly broke its

 1
   Judge Reinhardt’s dissent is premised on the notion that, although Fox
chose to vacate her plea agreement rather than to specifically enforce it,
the state court violated the Due Process Clause by giving her exactly what
she sought. But neither Cuero v. Cate, — F.3d —, 2016 WL 3563660
(9th Cir. 2016), nor any other case Judge Reinhardt cites so holds. Absent
ineffective assistance, a defendant whose plea agreement is breached is
not limited to the remedy of specific performance; she may seek to vacate
the plea and go to trial. That is the unfortunate choice Fox made here.
                       FOX V. JOHNSON                         27

promise to her and lied about it to the courts, Fox will now
likely spend the rest of her life in prison, unless the governor
commutes her sentence.

    Thirty years ago, in 1986, when Fox filed her first habeas
petition, this case should have had a simple resolution. There
would be no petition before us today if the State had simply
assured Fox that she would receive the term of imprisonment
that she and the State had agreed to when she forfeited her
freedom, or if the State courts that heard Fox’s 1986 petitions
had fulfilled their obligation, under Santobello v. New York,
404 U.S. 257 (1971), to determine the appropriate remedy for
the State’s breach of its plea agreement. Instead, the state
prosecutors repeatedly denied promising Fox even the
possibility of a release in seven and one-half years, despite
the clear evidence to the contrary. The state courts for their
part entirely disregarded her petitions, although the state court
of appeal later found that she had been promised the parole to
which she had repeatedly told them she was entitled.
Frustrated with the struggle, Fox sought to withdraw from the
terms of the “agreement” that the State unilaterally imposed
upon her. Instead, although she had already fulfilled her part
of the bargain, the court withdrew her entire plea agreement,
and after serving almost her full seven and one-half year
prison term, Fox found herself involuntarily facing trial
anew—this time on an even more serious charge, one that the
State had promised not to bring.

    In the thirty-odd years since Fox first sought to hold the
State to its bargain, she has been failed by many people: the
state prosecutors who abused her trust, the state judges who
failed in their obligation to provide her with an appropriate
remedy for the State’s broken promise, and the attorney who
sought to “withdraw” her plea rather than seek the remedy
28                     FOX V. JOHNSON

she had desired from the beginning—specific performance of
her bargain. The majority, while purporting to recognize that
this is an “unfortunate” situation, concludes that it cannot
provide Fox with a remedy due to the procedural posture of
this case. While it comes as no surprise that my colleagues
honestly believe that our habeas jurisprudence’s rigid
adherence to procedural rules demands a result so antithetical
to justice, I cannot in good conscience concur. In my
opinion, due process, at its core, requires that every judicial
proceeding be fundamentally fair, see Lassiter v. Dep’t of
Soc. Servs., 452 U.S. 18, 24–25 (1981)—and what happened
to Candace Fox is not fair, not by any possible conception of
the word. If due process means anything, it means that the
promise that the State made over thirty years ago should be
enforced and Fox’s unconstitutional sentence of life without
the possibility of parole should be vacated. Fox has more
than served her time. I respectfully dissent.

                      I. BACKGROUND

    The story of this case is one of repeated falsehoods by the
state prosecutors and repeated errors by the state courts, each
condemning Fox to untold years in prison in violation of the
State’s original bargain. While the majority opinion
describes the procedural posture of this case at great length in
order to explain why it believes there is nothing it can do for
Fox—or for justice—its cold recitation of the facts does not
adequately capture the injustice that has occurred. Nor can
the majority opinion or any other obfuscate the plain fact that
after Fox carried out her part of the bargain, the State
obdurately and willfully refused to carry out its.

   In 1984, Candace Fox struck a plea agreement with
California prosecutors. The agreement was not reduced to
                      FOX V. JOHNSON                        29

writing but its terms were clear. Fox would plead guilty to
second-degree murder and testify against her co-defendant.
In exchange, the State would drop all additional charges
against her. Under this plea, the State promised, she would
be sentenced to 15 years to life, and would be paroled at the
end of seven and one-half years of imprisonment if she
conducted herself properly while incarcerated. Although the
State for many years denied ever making Fox any such
promise, the transcript of her sentencing hearing reveals the
truth, and the state court of appeal ultimately recognized that
it did. As the transcript shows, after the sentencing judge
announced Fox’s sentence of fifteen years to life, defense
counsel objected, and the following exchange occurred:

       [Counsel]:      [I]f I may, for the record, Your
                       Honor, I believe the People
                       have indicated as part of the
                       plea bargain that [petitioner
                       would] be looking at obtaining
                       probation–parole, excuse me,
                       in seven and a half years [¶] Is
                       that correct, [prosecutor]?

       [Prosecutor]: That’s correct.

       [Trial Court]: All right . . . Also, the court
                      will order a transcript of these
                      proceedings to be sent with
                      [petitioner] to the state prison
                      just in an abundance of
                      caution.

    Fox fulfilled her end of the bargain. She testified at the
preliminary hearing against her co-defendant for over five
30                     FOX V. JOHNSON

hours. Subsequently, she pleaded guilty to second-degree
murder and commenced serving her sentence. In the course
of doing so, she learned that the state prosecutor had made a
false promise—a promise the State ultimately asserted that it
could not fulfill. A representative of the parole board
informed Fox that under California law she would not be
eligible for parole until she had spent at least ten years in
prison. Further, she learned that after her release she would
be on parole for the rest of her life. Understandably dismayed
to discover that the State had misrepresented the truth to her,
Fox began her thirty year struggle to hold the State to its
word—as it turned out, a hopeless Sisyphean task.

     A. 1986 Habeas Petitions

    In 1986, Fox filed her first habeas petition in the Los
Angeles Superior Court seeking to ensure that the State
would fulfill its end of the bargain. In it, she explained that,
at the time she entered her plea, she understood that “she
would be entitled to release after seven and one-half years,
provided that she behaved properly in state prison” because
of statements made by “her counsel and by the deputy district
attorney” at the time of her plea. Further, she explained, she
had never been advised that she would be placed on lifetime
parole after release from prison. The superior court denied
her petition on the same day that it was filed, citing only
“page 4 of the plea transcript.”

    Immediately thereafter, Fox filed another habeas petition,
this time with the California Court of Appeal. Once again,
she advised the court that the prosecutor had told her that
“she could not serve more than 7-1/2 years of actual
incarceration unless she failed to ‘behave herself’ in state
prison” and that “until recently, [she] ha[d] been unaware that
                          FOX V. JOHNSON                              31

her sentence entail[ed] a potential life-long period of parole.”
She did not request withdrawal of her plea. Instead, she told
the court that her “sentencing was unlawful,” and that she
wished the matter to be “remanded for resentencing.”

    The resolution of these petitions should have been simple.
At the time, Santobello v. New York, 404 U.S. 257 (1971) had
been the law of plea bargains for over a decade. In that case,
the Supreme Court held that plea bargains were entitled to
constitutional protection, and that “when a plea rests in any
significant degree on a promise or agreement of the
prosecutor . . . such promise must be fulfilled.” Id. at 262
(emphasis added); 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.”). Further, when the government breaches its
promise, the courts have an independent duty to determine
that the defendant receive what he is “reasonably due.”
Santobello, 404 U.S. at 262. That is to say, it is the
constitutional responsibility of the courts to determine
whether, under the circumstances of the case, the defendant
should receive specific performance of his plea agreement or
be given the opportunity to withdraw his plea. Id. at 264; see
also id. at 267 (Douglas, J. concurring) (“One alternative may
do justice in one case, and the other in a different case.”).
Despite the State’s clear breach of the plea agreement in this
case, however,1 neither the superior court nor the court of


 1
   Although there has been some debate as to whether Fox was promised
merely consideration for parole in seven and one-half years or entitlement
to parole (assuming good behavior) in seven and one-half years, in either
case the State had breached the agreement by informing her that she
would not even be considered for parole until she had served ten years in
32                         FOX V. JOHNSON

appeal ever conducted a Santobello inquiry to determine the
appropriate remedy for the breach of Fox’s plea agreement.
Instead, both summarily dismissed Fox’s petition.2

     B. 1989 Habeas Petitions

    Three years later, Fox again petitioned the superior court
for a writ of habeas corpus, this time with new counsel. In
contrast to her earlier petition, Fox’s new counsel asked to
have her guilty plea set aside on the ground that there had
been newly discovered evidence exonerating her of the
murder, and that her prior counsel had ineffectively advised
her about a potential duress defense. Shortly thereafter, Fox
replaced her counsel, because the woman had “what appeared
to [Fox] like a nervous breakdown” when she had began
“cracking up and laughing” and “talking to herself” in the
courtroom.

   The replacement counsel filed a supplemental brief in
support of Fox’s petition in which Fox asked to have her


prison. Because the state court of appeal found in the course of a later
appeal that the promise was one of entitlement to release in seven and one-
half years, that term is used to describe the promise throughout this
dissent.
 2
    Although a copy of the state court of appeal’s denial is not on record,
both parties have stipulated that the petition was denied as “unripe”—a
highly questionable proposition considering that Fox had been informed
that her minimum eligible parole date was set for 1994, which would
require her to spend at least ten years in prison before being considered for
parole. This strongly indicates that the State had anticipatorily breached
the plea agreement. Any state law to the contrary would unduly burden
Fox’s attempt to vindicate her constitutional rights, as it would require her
to remain in prison longer than her promised sentence, and continue to
remain in prison, while state courts resolved her claim.
                      FOX V. JOHNSON                        33

guilty plea set aside on two bases. The first ground for relief
was that Fox’s plea was involuntary because she “did not
understand that her period of confinement would exceed
seven and one-half years with good prison behavior.”
Although Fox’s petition termed the plea “involuntary,” the
context of her argument shows that she was actually asserting
that the State was applying a plea agreement to which she had
not agreed and that it had breached its agreement as to the
true plea. The plea was involuntary only to the extent that the
court deemed it to be the agreement that the State claimed it
to be (i.e., no promise of eligibility or entitlement to parole
after seven and one-half years had been made). The plea was
breached, however, if the terms were what Fox asserted they
were and what they actually were: that a promise of
entitlement for parole was part of the plea agreement. As the
excerpt of the sentencing hearing described, and as the
California Court of Appeal later found, under the agreement
that Fox actually entered into, her incarceration could not
exceed seven and one-half years with good behavior; instead,
she would be paroled at that time. See Brown v. Poole,
337 F.3d 1155, 1159–62 (9th Cir. 2003). Thus, the State’s
refusal to even consider Fox for release until she had served
ten years in prison did not render Fox’s plea involuntary, but
rather, constituted a breach of the plea agreement. See
Puckett v. United States, 556 U.S. 129, 137 (2009) (“When
the consideration for a contract fails—that is, when one of the
exchanged promises is not kept—we do not say that the
voluntary bilateral consent to the contract never existed . . .
we say that the contract was broken.”). That Fox sought to
“withdraw” her purportedly “involuntary” plea on this basis
makes it plain that Fox was seeking to “withdraw” only from
the terms of the agreement that the State was attempting to
impose upon her unilaterally, not from the terms of the true
agreement. Moreover, as is explained below, a request to
34                    FOX V. JOHNSON

withdraw includes a request to enforce in cases in which a
plea agreement has been breached by the State. See
discussion infra at 53–67. The second ground for relief
alleged in the supplemental petition was that Fox had not
been advised that she faced a potential lifetime period of
parole after her sentence.

    A hearing was held in July 1989 at which the prosecutor
denied that Fox had ever been promised that she could be
released on parole in seven and one-half years. Indeed, it was
disclosed at the hearing that Fox had been assigned a
minimum release date in 1994—which would require her to
spend at least ten years in prison before even being
considered for parole, despite the terms of her agreement.
The superior court then granted Fox’s petition on an entirely
different basis, holding that her plea was involuntary because
she had not been advised of the lifetime parole period, and
ordered that Fox’s entire plea be set aside. It did so without
reaching the question of whether the State had breached the
agreement or whether, if a breach occurred, withdrawal or
enforcement would be the appropriate remedy. Indeed, it
announced its decision without ever asking Fox if she had a
preferred remedy for the breach, or attempting to determine
whether her request to “withdraw” her plea after she had
already served a substantial portion of her sentence was
knowingly, intelligently, and voluntarily made. Instead, upon
announcing its decision, it immediately set a trial date.

     C. Trial, Sentencing, and Appeal

    Twice before trial—once two years before the jury was
empaneled, and another six months before that time—Fox
filed motions asserting that the court should not have
withdrawn her plea because, under Santobello, specific
                       FOX V. JOHNSON                        35

performance was a remedy that the court should have
considered. (In fact, in Fox’s case, it was the only
appropriate remedy.) At the time of her second motion, Fox
had served virtually the entirety of the sentence she had been
promised would be her maximum, assuming good behavior.
In its opposition, the State continued to maintain that Fox was
never promised that she would be entitled to parole in seven
and one-half years, and that under California law it had never
been possible for her even to be eligible for parole in seven
and one-half years. The superior court denied both of Fox’s
motions without comment and in a form order. On January
28, 1992, a jury convicted her of first degree murder and first
degree burglary, charges which the State had previously
dropped pursuant to the terms of the plea agreement that it
breached. At this time, of course, Fox had served the entirety
of the promised seven and one-half year term.

    Before sentencing, Fox once again asked that she be given
the benefit of her bargain. As she explained, she had been
promised parole in seven and one-half years in exchange for
her testimony against her co-defendant and her plea of guilty,
but had been denied the benefit of her bargain by the State
after she had complied fully with her promise. The due
process clause, she argued, required that she be given an
appropriate remedy for the breach of the promises made to
her, but, she asserted, she did not receive such a remedy.
Instead, after serving almost the full seven and one-half years,
just months before she was entitled to release, the state court
subjected her to a trial on a more serious charge—a charge on
which the State had promised it would not prosecute her.
That prosecution was in no way just or fair. As she told the
court in her brief, “[e]ven if acquitted she had already done
the time she bargained for in the beginning.” The State, she
argued, got what it bargained for, and should be “estopped”
36                    FOX V. JOHNSON

from denying the same to Fox after she had detrimentally
relied on its promises throughout her years in prison. Further,
she contended, since the superior court had already vacated
her plea—she should be allowed to plead to a lesser charge
that would give effect to the original agreement of the parties
in compliance with California law. The court denied her
motion and sentenced her to life imprisonment without the
possibility of parole.

    Fox appealed and again argued that under Santobello she
was constitutionally entitled to a remedy for the breach of her
plea agreement, and that “[a]fter she had served in excess of
7 ½ years, it was unjust” for the court to allow her only the
option of withdrawing her plea; in doing so, she contended,
it offered her no remedy; rather it presented her with the
fundamentally unfair choice of either accepting a sentence
that increased the period of incarceration provided for by her
original agreement or going to trial in which case she faced
even far greater punishment if convicted. She argued that
rather than a coerced withdrawal, she should have been given
specific performance as the only appropriate remedy for the
State’s breach of the plea agreement.

    In response, the State did not deny its promise to Fox, nor
did it claim—as it had in the past—that its promise to her was
unenforceable under California law. Instead, it admitted for
the first time that, pursuant to the plea agreement, Fox was to
serve “about 7 ½ years,” but asserted that its promise was
now unenforceable because the court had withdrawn Fox’s
plea agreement at her request.

   In its unpublished 1994 decision, which the State
contends is the last reasoned decision and thus the decision
                            FOX V. JOHNSON                             37

that we must examine under habeas law,3 the state court of
appeal agreed that Fox had been promised release in seven
and one-half years. It found that Fox “bargained for[] a
sentence of 15 years to life, with a promise of parole in seven
and one-half years.” Then, ignoring the fact that the State
had repeatedly denied ever making this promise and that
Fox’s parole eligibility date had been set well after the
expiration of her seven and one-half year term, the California
Court of Appeal inexplicably found that the only reason Fox
had asked to withdraw her plea was that “she didn’t like the
deal she’d made.”4 It then concluded that she had no right to
the bargained-for sentence limited to seven and one-half years
in prison, even though she had fulfilled her part of the
bargain, because she had voluntarily rescinded the plea
agreement. Fox again appealed, and the California Supreme
Court denied her petition for review without comment.5




 3
      See, e.g., Ylst v. Nunnemaker, 501 U.S. 797, 803–04 (1991).
  4
    Fox, of course, did like the deal she had made. Although the court
determined that she did not like the length of the parole term, her “deal”
said nothing about the length of the term of parole that would follow her
sentence, only that she would be released in the promised seven and one-
half years. Fox had no problem with this deal—her problem was that the
State continuously denied that she could or would be released in
accordance with her deal. See infra pp. 45–49.
 5
   As this court recently noted in Curiel v. Miller, the California Supreme
Court must rule on a “staggering number of habeas petitions each year,”
and addresses this otherwise insolvable workload problem “by issuing
unelaborated summary denials.” Curiel v. Miller, No. 11-56949, Slip Op.
at 7.
38                     FOX V. JOHNSON

     D. Post-Trial State Habeas Petitions

    Following the denial of her direct appeal, Fox filed yet
another habeas petition in superior court, once again raising
her claim that she was entitled to specific performance of the
original plea agreement. She also asserted that her prior
habeas attorney had provided ineffective assistance of
counsel in seeking to set aside her plea in 1989 rather than
seeking specific performance or resentencing. Her petition
was denied without comment or citation of authority.

     Fox again returned to the California Court of Appeal,
which remanded for an evidentiary hearing on the issue
whether Fox received ineffective assistance of counsel by
filing a habeas petition that resulted in her guilty plea being
withdrawn. In that hearing, the superior court limited its
inquiry to the question whether counsel advised Fox about the
risk that she could face a new trial or a longer sentence. It did
not examine whether the attorney should have advised Fox
about her right to specific performance of her original
bargain.

    During the two-day hearing, Fox’s former habeas counsel
testified that he had asked to withdraw her plea because he
believed that the District Attorney would offer a second plea
bargain. He further testified that he had declined to seek
specific performance because he did not believe that the
statements made about the promise of parole during Fox’s
sentencing hearing were “legally binding on The Court or the
District Attorney.” Accordingly, he believed that asking for
                             FOX V. JOHNSON                                  39

withdrawal on the basis that Fox’s plea was involuntary was
a stronger argument.6

    Fox’s testimony revealed that the advice given to her by
her habeas counsel was muddled at best. Specifically, she
explained that, although she knew her 1989 habeas petition
asked to have her plea “withdrawn,” she understood that if
that petition were successful, the court would give her the
seven and one-half year period of incarceration that she had
been promised. She testified that, on the basis of the advice
of her counsel, she believed that the court would “adjust some
kind of plea bargain” so that she could receive the promised
seven and one-half years. Fox explained that she had been
informed that by requesting “withdrawal” of her plea, she
would enable the court to invalidate the terms of the bargain
as the prosecutor wrongfully described them and that the
court would then be able to enforce specific performance of
the true agreement by allowing her to change her plea to that
of a lesser charge, one which, under California law, would
allow her to be paroled upon completion of the promised
seven and one-half years.7 Her testimony, in this respect is,

 6
   That procedure, of course, could still obtain the same result as specific
performance (a seven and one-half year term followed by parole) if Fox
had been allowed to replead after the plea had been withdrawn. As
described below, this appears to be the result Fox hoped to obtain.
  7
    Although, as the majority reports, Fox was apparently also told that “if
[she] went to trial” she could get a sentence of life without the possibility
of parole, that statement is of little significance in light of the fact that Fox
testified that she was also informed that, if her petition were successful,
she would not have to take the case to trial and could, at the worst, choose
the option of again pleading to second degree murder. She testified that
she had been told that she “could always plead out to second-degree”
which would come with a fifteen-years-to-life sentence. Indeed, she
testified, her attorney told her that the opportunity to plead out to second-
40                       FOX V. JOHNSON

of course, credible because the minimum ten year eligibility
date for parole on which the State insisted was based on a
provision of state law of which the prosecutor was apparently
unaware when he promised her parole after seven and one-
half years. Changing Fox’s plea to a lesser charge would
have enabled the State to comply with its own rules as well as
with the Constitution.

    The superior court denied the petition from the bench on
June 2, 1999. Ignoring almost all of the facts set forth above,
it found that Fox’s habeas attorney was not ineffective
because he had advised her that setting aside her plea
agreement could result in a new trial that would expose her to
a sentence longer than the one she was serving, “up to and
including life without the possibility of parole.”
Subsequently, Fox once more moved her way through the
hierarchy of the California courts. The California Court of
Appeal denied her petition without comment, and the
California Supreme Court denied it as untimely.

     E. The Federal Petition

    After two decades of litigation in the California courts,
Fox finally turned naively to the federal judiciary.
Proceeding pro se, she filed a habeas petition under 28 U.S.C.
§ 2254 on August 13, 2004. The State moved to dismiss the
petition as untimely, but the district court held that Fox was
entitled to equitable tolling based on the misconduct of her
habeas lawyer who had resigned from the practice of law
after masterminding what the California Court of Appeal


degree would “always” be “on the table.” According to Fox, however,
neither the prosecution nor the court ever gave her that opportunity or
otherwise complied with the dictates of Santobello.
                            FOX V. JOHNSON                                41

described (in another case) as a habeas corpus “writ mill,”
designed to “systematically . . . abus[e] the writ process for
his own pecuniary gain.” In re White, 121 Cal. App. 4th
1453, 1458 (2004).8

   Originally, in October 2009, a magistrate judge issued a
report and recommendation which concluded that Fox was


 8
   Richard Dangler, the attorney in question, represented Fox through her
third round of state habeas petitions, those that were filed after her trial.
According to the district court, Dangler was paid $5,000.00 and it was
agreed that he would promptly appeal any denial by the Los Angeles
Superior Court, and then, if those petitions were unsuccessful, promptly
file a federal petition within AEDPA’s one year statute of limitations.
Despite Dangler’s assurances, it took him over 11 months to file a new
petition in the state court of appeal, at which point he filed a petition that
essentially simply copied the petition he had originally filed in the
superior court. Following the court of appeal’s denial, Dangler waited
another 27 months to file a petition in the California Supreme Court, and
again, filed a petition that simply mirrored the one that the court of appeal
rejected. During this time, Fox wrote Dangler numerous letters about the
length of time he was taking to file her petitions, and Dangler repeatedly
assured her that she had nothing to worry about. After Dangler had
resigned from the practice of law, and after the California Supreme Court
denied Fox’s petition as untimely, Dangler sent Fox a letter informing her
that she should file another habeas petition in the California Supreme
Court and that his associate, C. Roman Rector would be willing to
represent her in connection with that petition at no charge, provided that
Rector was retained to file a federal petition for $8,250.00. (Although this
opinion refers to the process of going through the California appellate
system after the completion of proceedings in the superior court as
“appealing” the denial of a petition, the California system consists simply
of filing a new petition with the next level of the judicial system. For
almost all purposes, California treats the post-conviction petitions filed at
the second and third levels as appeals. There is a difference not relevant
here, however, in cases in which the order of filing the petitions is
different, for example filing the first petition in the state supreme court,
which is permissible under California law).
42                    FOX V. JOHNSON

entitled to relief on her request for specific performance. The
magistrate judge reasoned that Fox’s agreement with the State
plainly entitled her to be eligible for release on parole after
seven and one-half years. Contrary to the opinion of the
California Court of Appeal, the magistrate judge held that
Fox clearly did not receive the benefit of her bargain. She did
not, as the state court had reasoned, “decide[] she didn’t like
the deal she’d made,” but instead sought relief because the
State informed her that she was not going to receive the
benefit of the deal she had made. Indeed, the magistrate
judge found, the state court of appeal’s decision was contrary
to clearly established Supreme Court law and based on
unreasonable determinations of the facts, and therefore failed
even the highly deferential standard of review established
under both 28 U.S.C § 2254(d)(1) and (d)(2). Further, the
magistrate judge recommended, that since Fox had served
more than five years of her promised seven and one-half year
sentence at the time her plea was withdrawn in October 1989,
the only appropriate remedy was to enforce, not withdraw,
the bargain.

    The State filed objections and the magistrate judge
revised his report.        In the amended report and
recommendation, issued in March 2012, the magistrate judge
ruled that Fox had not shown that the state court’s decision
was contrary to or an unreasonable application of clearly
established Supreme Court law, and therefore could not
survive the deferential standard of review established under
28 U.S.C. § 2254(d)(1). As explained infra Part II, such a
finding would require that the federal court deny Fox relief
only if she could not overcome the equally deferential
standard set forth in 28 U.S.C. § 2254(d)(2), which governs
unreasonable findings of fact. Inexplicably, however,
although he had previously relied on both 28 U.S.C.
                      FOX V. JOHNSON                       43

§ 2254(d)(1) and (d)(2) in his original report and
recommendation, the magistrate judge did not address
whether Fox met the standard with respect to unreasonable
findings of fact under 28 U.S.C. § 2254(d)(2). The district
court nevertheless adopted the revised report and
recommendation, denied Fox’s petition, and issued a
certificate of appealability. This appeal timely followed.

                II. STANDARD OF REVIEW

     The majority carefully avoids deciding whether the
strictures of the Anti-terrorism and Effective Death Penalty
Act (“AEDPA”) requiring deference to the state court’s
decision apply here. That Act bars further review of any
claim “adjudicated on the merits” in state court, unless the
State’s decision falls within an exception contained in
28 U.S.C. § 2254(d)(1) or (d)(2). Harrington v. Richter,
562 U.S. 86, 98 (2011). Those exceptions permit a grant of
habeas relief in cases in which the relevant state-court
decision is (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
to the State court proceeding.” 28 U.S.C. §§ 2254(d)(1) and
(2).

    As the majority correctly states, AEDPA’s limitations
apply “to a single state court decision, not to some
amalgamation of multiple state court decisions,” and when
more than one state court has adjudicated the claim, we
analyze only “the last reasoned decision.” Barker v. Fleming,
423 F.3d 1085, 1091, 1093 (9th Cir. 2005) (citing Ylst,
501 U.S. at 803–04). Thus, when a decision “does not
disclose the reason for the judgment,” we will “look through”
44                     FOX V. JOHNSON

it and apply AEDPA deference to a prior decision on the
merits. Ylst, 501 U.S. at 802. If the last reasoned decision
states a procedural reason for the judgment, however, we
ordinarily do not apply AEDPA deference and instead,
review the claim de novo if the petitioner can show cause and
prejudice to overcome the procedural default.

    Here, the California Supreme Court’s 2004 denial of
Fox’s petition rested on a procedural ground. The State,
however, believes that we should “look through” that
decision both because it has waived Fox’s procedural default
and because the procedural ground in question was merely a
failure to file a timely petition, a ground that would not
disturb the underlying decision on the merits. It therefore
urges that we instead treat the 1994 court of appeal decision
(which was the last decision to announce the reason for its
judgment prior to the 2004 California Supreme Court’s
denial), as the last reasoned decision in this case. Because
that decision addressed the merits of Fox’s claim, it argues,
we cannot grant relief unless that decision falls within one of
the exceptions set forth in 28 U.S.C. § 2254(d).

    I, like the majority, do not believe that we need to resolve
the question of which opinion is the last reasoned decision in
this case, and I, like the majority, apply de novo review to
Fox’s claim. I do so because, even assuming that we must, as
the State urges, “look through” the California Supreme
Court’s timeliness decision and give deference to the 1994
court of appeal’s resolution of Fox’s claim on the merits, that
decision is so unreasonable that it fails even AEDPA’s highly
deferential test, and therefore, de novo review applies. See
Hurles v. Ryan, 752 F.3d 768, 778 (9th Cir. 2014) (holding
that, once the court has found that the state court’s decision
meets one of the exceptions listed in 28 U.S.C. § 2254(d),
                           FOX V. JOHNSON                              45

“we evaluate the claim de novo”). Accordingly, even under
the State’s argument as to the last reasoned decision, de novo
review applies.9

    In this case, the California Court of Appeal plainly
misapprehended, and indeed, ignored, material facts, and as
a result based its decision on factual findings that are entirely
unsupported by the record and are for that reason alone
wholly unreasonable. It thus falls within the exception set
forth in Section 2254(d)(2). See Milke v. Ryan, 711 F.3d 998,
1008 (9th Cir. 2013) (“[W]here the state courts plainly
misapprehend or misstate the record in making their findings,
and the misapprehension goes to a material factual issue that
is central to petitioner’s claim, that misapprehension can
fatally undermine the fact-finding process, rendering the
resulting factual finding unreasonable.”) (quoting Taylor v.
Maddox, 366 F.3d 992, 1001 (9th Cir. 2004)). Ironically, in
resolving Fox’s claim adversely, the California Court of
Appeal determined that Fox had been promised “a sentence
of 15 years to life, with a promise of parole in seven and one-
half years,” a critical factual finding that was reasonable and
supported by Fox’s representations as to her plea bargain, by
the transcript of her sentencing hearing, and by the State’s
concession on appeal that under the plea agreement, Fox


 9
   If the California Supreme Court’s 2004 decision were the last reasoned
decision, of course, Fox would not need to overcome either of the
exceptions listed in 28 U.S.C. § 2254(d) because that decision was not a
decision “on the merits.” The normal course of action in such case is to
allow the petitioner the opportunity to show cause and prejudice for his
procedural default, and then, if such a showing is made, to review the
claim de novo. Here, because the State has waived any argument that
Fox’s relief is procedurally defaulted, Franklin v. Johnson, 290 F.3d 1223,
1230 (9th Cir. 2002), we would proceed directly to the merits and review
the claim de novo.
46                     FOX V. JOHNSON

would serve “about 7 ½ years.” The remainder of that court’s
resolution of Fox’s claim, however, is riddled with
unreasonable factual findings. Although it agreed that Fox
had been promised parole in seven and one-half years, it
wrote that Fox “got what she bargained for,” and that she
asked to have her deal set aside only because she “didn’t like
the deal she’d made.” Those findings not only directly
conflict with the court’s immediately preceding finding as to
the contents of Fox’s plea bargain, but could be made only by
ignoring or overlooking substantial portions of the record, the
State’s concession, and all of the evidence of the State’s
breach of its plea agreement.

    Contrary to the state court of appeal’s findings, the record
clearly reflected that at the time she filed her 1989 petition,
Fox was not, in fact, going to get what she bargained for. As
described above, in both her 1986 and 1989 petitions, Fox
asserted that she had pleaded guilty after the deputy district
attorney promised that she would be released on parole,
assuming good behavior, after seven and one-half years, and
that only after she was in the midst of serving her sentence
was she informed that she could not even be considered for
release at the bargained-for time. Specifically, she asked to
withdraw her plea only after representatives from the State
informed her that the prosecutor had made a false promise
and that, under California law, she could not receive the
benefit of her bargain. Indeed, as her 1989 petition made
clear, she filed her petitions for relief because she was
informed by the State that her “minimum eligible release date
[wa]s almost ten years, contrary to seven and one-half years
as stated by [the] Deputy District Attorney.” In fact, in
responding to Fox’s petitions, the prosecution had taken the
position that Fox could not be considered for parole until she
had spent at least ten years in prison, and that any promise
                       FOX V. JOHNSON                          47

made to the contrary was contrary to California law. The
state court of appeal, however, ignored this and all other
evidence that showed that Fox was not, in fact, “g[etting]
what she bargained for.”

    Indeed, the state court of appeal did not even mention that
Fox sought relief in her 1989 habeas petition on the basis that
she was not going to receive parole after seven and one-half
years of incarceration as the State had promised. Instead, it
wrote that there were only two bases for Fox’s 1989 petition
(that she had not been fully advised of the consequences of
her guilty plea, and that she had been ineffectively advised
about her potential duress defense) while ignoring the
primary, most substantial and repeatedly asserted basis for
Fox’s habeas petition (that she was being forced to remain in
prison for at least ten years, in violation of the prosecutor’s
promise regarding parole). Without wholly ignoring this
primary ground and the evidence that supported it, the court
of appeal could not have concluded that “[f]ive years into her
sentence (with only two and one-half years to go), Fox
decided she didn’t like the deal she’d made.” The record
shows exactly the opposite: Fox sought relief not because she
did not like the deal she had made, but because the State
refused to acknowledge the deal into which it had entered and
also contended that it lacked the power to deliver on its part
of the bargain.

     The state court of appeal also unreasonably found that
Fox was granted “the relief she so desperately
wanted”—withdrawal of her plea and a trial at which the
State could try to prove the charges against her. Fox’s pre-
trial motions, which were filed well in advance of the actual
trial, make clear that a new trial was not the relief she desired.
She tried vigorously to avoid a new trial and sought
48                         FOX V. JOHNSON

reinstatement of all parts of the plea bargain that she insisted
she had made. This was not a case in which the defendant
gambled a life in prison in the hope of being acquitted and
later regretted the outcome. It was one in which the
defendant had, from the very beginning, surrendered her right
to trial in exchange for a promise of parole after serving
seven and one-half years of imprisonment and, for decades
thereafter continuously sought to enforce that promise. The
state court of appeal, however, did not even discuss the
contents of Fox’s pre-trial attempts to secure a remedy
consistent with her original plea bargain.10

    Most troubling, the state court of appeal unreasonably
found that Fox’s “predicament”—that is, a lifetime in state
prison without the possibility of parole—was “entirely a
result of her own actions without any fault of the prosecutor
or the court.” Indeed, it stated, the prosecutor “did nothing to
breach the plea agreement.” The record clearly and
affirmatively establishes, however, that Fox’s “predicament”
was, in fact, exclusively the fault of the State. Fox pleaded
guilty on the basis of the prosecutor’s representations that she
would be paroled in seven and one-half years, assuming good
behavior. As it turned out, however, the prosecutor had
misinformed her on that critical point. Whether through
negligence or incompetence, the prosecutor failed to inform


  10
     Both the majority and the concurrence apparently agree with the state
court of appeal that Fox “got what she asked for” when the state court
withdrew her plea. The facts and extensive procedural history of this case
make clear, however, that Fox had, at all times, sought to receive the
benefit of the bargain she had originally made. See supra at pp. 30–40;
see also infra at pp. 61–64. Further, as explained infra pp. 53–67, because
the State had breached its promise to Fox, the state courts had a duty to
independently determine the appropriate remedy for this breach, which the
courts did not do here.
                           FOX V. JOHNSON                                49

Fox that state law prohibited a release at the promised time.
After she had performed her part of the bargain, Fox learned,
from a representative of the State, that, contrary to the
prosecutor’s promise, she would not be paroled until she had
spent at least ten years in prison. When she tried to explain
her “predicament” to the State and to its judiciary, the
prosecution falsely denied ever making such a promise, and
further denied having the authority to do so. The state court
of appeal ignored all of this critical information when
determining that “her predicament [was] . . . without any fault
of the prosecutor,” and that the prosecutor “did nothing to
breach the plea agreement.”

     The evidence that the California Court of Appeal ignored
was vital to Fox’s claim. The entire basis of her appeal was
that she was entitled to specific performance of the State’s
obligations following her performance of her part of the
bargain and that the court had unlawfully withdrawn her plea
after the State’s breach without offering her that option. The
state court of appeal had before it, “yet apparently ignore[d],”
all the evidence that was central to Fox’s claim that the State
had breached the plea agreement. Thus, we do not accord
AEDPA deference to its decision. See Milke, 711 F.3d at
1008–1010. Rather, we must review Fox’s claim de novo.
See Hurles, 752 F.3d at 778 (“If we determine, considering
only the evidence before the state court, that the adjudication
of a claim on the merits . . . was based on an unreasonable
determination of the facts, we evaluate the claim de novo, and
we may consider evidence properly presented for the first
time in federal court.”).11


 11
    In the alternative, I would also find that the California Court of Appeal
decision was contrary to and an unreasonable application of clearly
established Supreme Court law because it made no mention of, or
50                         FOX V. JOHNSON

                          III. DISCUSSION

    The enforcement of promises that are made in exchange
for defendants’ waivers of their freedom is a matter of sound
public policy and profound constitutional importance. Well
over ninety percent of criminal convictions are based on plea
bargains, and each of those convictions depends on public
faith in the integrity of the government’s promises. More
important, defendants surrender their fundamental rights and
liberties in exchange for these promises, and robust
constitutional protections must be in place to ensure that the
entirety of the plea process is just and fair. See, e.g., Missouri
v. Frye, 132 S. Ct. 1399 (2012); Santobello, 404 U.S. 257.
Accordingly, a guilty plea vests the defendant with “a due
process right to enforce the terms of his plea agreement,”
ensuring protections for his sacrifice of fundamental
freedoms and for the integrity of the government’s word. See
Buckley, 441 F.3d at 694 (citing Santobello, 404 U.S. at
261–62); see also Cuero v. Cate, 2016 WL 3563660 (9th Cir.
June 30, 2016); Doe v. Harris, 640 F.3d 972, 975 (9th Cir.
2011) (“Under the Due Process Clause, criminal defendants
have a right to enforce the terms of their plea bargains.”);
Brown, 337 F.3d at 1159 (9th Cir. 2003).

     This case, which comes before us after decades of
litigation, started off with a relatively simple premise that


reference to, California contract law in determining whether the State had
breached its promise. See Ricketts v. Adamson, 483 U.S. 1, 5 n.3 (1987);
see also Buckley, 441 F.3d at 695 (“Thus, under Adamson, California
courts are required to construe and interpret plea agreements in accordance
with state contract law.”). In addition, I believe that it was an
unreasonable application of Santobello to fail to analyze whether specific
performance was the more appropriate remedy for the State’s obvious
breach.
                      FOX V. JOHNSON                        51

should have had a relatively simple resolution. In exchange
for Fox’s agreement to waive her fundamental right to a trial
by a jury of her peers and her agreement to testify against her
co-defendant, the State promised her that she would be
paroled, assuming good behavior, in seven and one-half
years. Then, after it received everything it needed from
her—her testimony and her freedom—the State breached its
promise. It informed her that she would not be considered for
parole until she had spent at least ten years in prison, and
indeed, denied ever agreeing to anything different. After this
breach, Fox had an indisputable right to enforce her plea
bargain.

    While the majority correctly states that Fox’s counsel did
not expressly request specific performance until after her plea
had already been withdrawn, in her 1986 petition to the
California Court of Appeal, she had contended that her
sentencing was unlawful and had requested that the case be
remanded for resentencing in accordance with her plea.
Further, under Santobello v. New York, state courts have a
duty to determine whether due process requires specific
performance of the broken plea agreement, regardless of
whether the defendant expressly requests only withdrawal.
404 U.S. at 262; id. at 267 (Douglas, J. concurring). In this
case, the state courts did not consider the appropriate remedy
for the State’s breach of the plea, and indeed, did not even
acknowledge the fact that the State breached its agreement.
Instead, the Los Angeles Superior Court withdrew Fox’s plea
agreement and forced her to go to trial after she had already
delivered the consideration required by her plea bargain and
had served the majority of the promised seven and one-half
years. As a result of the court’s rulings and the State’s
continuing misrepresentations, Fox was condemned to pursue
a series of legal actions that resulted in her being where she
52                     FOX V. JOHNSON

is today—behind bars for life, in violation of the State’s
promise.

    Had the state court fulfilled its obligation to determine the
appropriate remedy for the breach the first time Fox requested
relief, it undoubtedly would have concluded, as has every
court that has faced the question, that under the
circumstances, the only remedy that satisfies the demands of
due process is specific performance of the breached plea
agreement. See, e.g., Cuero, 2016 WL 3563660; Brown,
337 F.3d at 1161. Although, in making the determination of
the proper remedy, “considerable” weight must be given to
the defendant’s specific request, that weight is of no force
unless the court is satisfied that the defendant understands
and has considered the effects of choosing one option rather
than the other. Here, the court never presented Fox with her
options, nor did it assure itself that her waiver of the right to
specific performance was knowing, intelligent, and voluntary.
To the contrary, the record shows that Fox’s request for
“withdrawal” was coerced and that, given the choice, she, like
any other rational person, would have selected specific
performance. Indeed, the transcripts from her 1999
evidentiary hearing show that the only reason she sought to
“withdraw” her plea was so that she could be given the
opportunity to plead to a lesser charge, one that would entitle
her to the promised seven and-one half years without causing
the State to violate California law. In short, she wanted
specific performance all along.

    The majority apparently believes that, simply because
Fox’s plea was withdrawn—by unconstitutional means or
otherwise—there is nothing we can do to fix this injustice.
That is incorrect. See Cuero, 2016 WL 3563660 (holding that
a defendant may be given the benefit of his original bargain
                      FOX V. JOHNSON                       53

even after the plea has been withdrawn). In my view, the
state courts acted arbitrarily, unreasonably, and contrary to
law by withdrawing Fox’s plea without conducting an
adequate inquiry as to the appropriate remedy for the State’s
breach. Fox was entitled to a meaningful remedy, and as
every court since Santobello has concluded, withdrawal
cannot remedy a breach when a defendant has, like Fox,
already cooperated with the government or served a
substantial portion of her sentence. Because Fox did not
knowingly, intelligently, and voluntarily waive her
constitutional right to that remedy, her 1992
conviction—which was secured over her objections and in
violation of her rights—cannot stand. Specific performance
of the original bargain should now be granted, and Fox, who
has served a sentence exponentially in excess of the seven
and one-half years that she was promised, should be released
immediately.

   A. Fox had a Constitutional Right to Enforce the
      Terms of her Agreement after the State’s Breach

    In Santobello v. New York, the Supreme Court first held
that “when a plea rests in any significant degree on a promise
or agreement . . . such promise must be fulfilled.” 404 U.S.
at 262. There, New York prosecutors struck a deal with a
defendant, and promised that if he pleaded guilty to a lesser-
included offense, the prosecutor would make no
recommendation as to the defendant’s sentence. Id. at 260.
After considerable delay in scheduling his sentencing hearing,
the petitioner sought to withdraw his guilty plea. In turn, a
new prosecutor neglected his predecessor’s promise, and
recommended the maximum sentence allowable. Id. The
Supreme Court held that the defendant was constitutionally
entitled to a remedy for the prosecutorial breach. Id. at 264.
54                         FOX V. JOHNSON

It then remanded to the state court to determine “whether the
circumstances of this case” and the “interests of justice”
required specific performance of the promise, in which case
the petitioner would be resentenced, or withdrawal of the
plea, the relief sought by the petitioner. Id. As Justice
Douglas explained in his critical concurrence, “[o]ne
alternative may do justice in one case, and the other in a
different case.” Id. at 267.12

    When Fox sought to enforce her bargain, Santobello had
been the governing law with respect to plea bargains for over
a decade. Fox’s habeas petitions made clear that her plea
rested in significant part on the prosecutor’s promise that she
would be entitled to parole in seven and one-half years, but
that she had been expressly advised by prison authorities that
she would not even be considered for parole at the agreed-
upon time. In fact, she had been informed by state authorities
that she could not be made eligible for parole until after ten
years. Thus, it was clear that the State had no intention of
keeping its promise. Indeed, state prosecutors repeatedly
denied ever agreeing to the evident terms of their bargain.



  12
      Santobello was decided 4–3, with Justice Douglas’s concurrence
serving as the critical fourth vote. (From September 1971 until roughly
one month after Santobello was decided in December 1971, the Supreme
Court functioned with only seven justices. This was not a result of any
Senate obstructionism, however. Rather, in September 1971 Justice Black
resigned, and six days later, Justice Harlan died). The dissenting justices
did not disagree with the Court’s central holding that the constitution
guarantees a remedy for broken plea bargains. Instead, they believed that,
in this case, the defendant needed to be permitted to withdraw his guilty
plea, particularly because, unlike Fox, he had not yet been sentenced for
the crime. Thus, in Santobello, withdrawal would have had minimal, if
any, prejudicial effect on either the defendant or the State.
                       FOX V. JOHNSON                        55

    Thus, under Santobello, Fox had a constitutional right to
a meaningful remedy for the State’s breach, and the state
courts had a duty to ensure that Fox received what she was
“reasonably due”—to determine whether, under the
circumstances of this case, the interests of justice required
specific performance of the bargain or withdrawal of her plea.
The state courts declined to do so. There is no indication that,
at any point in the decades-long state proceedings, the state
courts ever considered what remedy would appropriately
rectify the State’s breach or that they ever considered specific
performance. By failing to do so, the State denied Fox the
remedy to which she was constitutionally entitled: specific
performance of her plea agreement.

   B. The Only Appropriate Remedy for this Breach was
      Specific Performance

    Had the State inquired into the appropriate remedy for the
breach of Fox’s plea agreement, it undoubtedly would have
come to the conclusion that the only appropriate remedy in
this case was to grant specific performance. Fox had fulfilled
her end of the bargain. She testified for several hours against
her co-defendant and, by all accounts, comported herself as
a model inmate in the years she spent in prison before filing
her habeas petitions. Unlike the defendant in Santobello who
had not yet been sentenced at the time of the breach, see
404 U.S. at 259–60, Fox had already forfeited her freedom
and spent a substantial amount of time in prison before she
learned of the state’s breach. In these circumstances, as
courts across the country had recognized at the time of Fox’s
petitions, specific performance was the only just and
meaningful remedy. Withdrawal simply would not provide
the return to the status quo that a proper remedy requires
because “[e]radicating the impact of [Fox’s] testimony is
56                     FOX V. JOHNSON

impossible,” and giving her the opportunity to replead after
such a long confinement is, at best, “superficial and
unrealistic.” Geisser v. United States, 513 F.2d 862, 871 (5th
Cir. 1975); see also United States v. Finkbeiner, 551 F.2d
180, 184 (7th Cir. 1977) (“Under the circumstances of this
case it would be unjust to simply vacate the guilty plea, which
theoretically would allow the state to reindict [the defendant.]
Since he has already performed his side of the bargain,
fundamental fairness demands that the state be compelled to
adhere to the agreement as well.”) (emphasis added); United
States v. Duff, 551 F.2d 185, 187 (7th Cir. 1977) (“Since
Ferris has substantially begun performing his side of the
bargain, it would not be fair to vacate the plea and require
him to go through the procedure anew.”); Palermo v. Warden,
545 F.2d 286, 296–97 (2d Cir. 1976) (“Remand for
withdrawal of the guilty plea would indeed have been
meaningless[.]”); Krager v. United States, 388 F. Supp. 595,
599 (D. Mass. 1975) (“To vacate [the defendant’s] plea, after
he has already served more than four years, would be an
empty gesture.”); State v. Tourtellotte, 88 Wash. 2d 579, 585
(Wash. 1977) (en banc) (“If we do not enforce the agreement,
the state would be permitted to play fast and loose with an
accused’s constitutional rights to its advantage and his
detriment.”) (internal quotation omitted).

    The three decades that followed have only served to
reinforce the notion that when a defendant has already served
a substantial prison term or has already provided the
bargained-for cooperation with the government, specific
performance is the only remedy for the governmental breach.
Indeed, this court held as much in Brown v. Poole, 337 F.3d
1155 (9th Cir. 2003), a case remarkably similar to this one.
There, as here, a petitioner in California custody had been
promised parole eligibility in seven and one-half years
                           FOX V. JOHNSON                              57

despite the fact that state law required her to be in prison for
at least ten years before being considered for parole.
Although the agreement was evident on the face of the state
court transcripts, the State asserted that the prosecutor had no
right to, and in fact did not, promise eligibility for or
entitlement to parole in seven and one-half years. In Brown
we held that the petitioner was “entitled to a remedy” for the
breach of her plea agreement, and that because she “ha[d] met
the terms of the agreed-upon bargain, and paid in a coin the
state cannot refund,” “[r]escission of the contract [wa]s
impossible[.]” Id. at 1161.             Accordingly, specific
performance was “the only viable remedy.” Id.; see also
Buckley, 441 F.3d at 699 (holding that, in similar
circumstances, “[r]escission of the plea agreement cannot
repair the harm caused by the state’s breach”).13

    Even more recently, in Cuero v. Cate, this court held that
a defendant who has performed his part of the bargain is
entitled to specific performance after a state’s breach even
after he has already withdrawn the bargain. 2016 WL
3563660. There, the defendant pleaded guilty to two felonies
pursuant to an agreement with the state that he would receive
a maximum of 14 years, 4 months in prison and 4 years of
parole. Id. at *1. After he pleaded guilty, the state prosecutor


 13
    This is also the approach that has been taken by state courts that have
followed Santobello’s mandate and inquired as to whether specific
performance is an appropriate remedy.            See, e.g., Shanklin v.
Commonwealth, 730 S.W. 2d 535, 537 (Ky. Ct. App. 1987). This has
been true even where, as here, the plea agreement was originally
erroneously set aside. See Brooks v. Narick, 243 S.E. 2d 841, 843 (W.V.
1978) (“We hold that withdrawal of his guilty plea was a coerced act
caused by the state’s breach of the plea bargain, and Brooks is entitled to
reinstatement of the guilty plea and specific performance of the
agreement.”).
58                     FOX V. JOHNSON

moved to amend the criminal complaint to allege additional
prior charges which, if allowed, would result in an
indeterminate 64 years to life under California’s three strikes
law. Id. at *2. This amendment clearly breached the plea
agreement and undoubtedly violated the defendant’s rights,
but the California Superior Court permitted it, and as a result,
Cuero withdrew his guilty plea. Id. As we explained,
allowing Cuero to withdraw his guilty plea “was no remedy
at all” because it did not “‘repair the harm’ caused by the
prosecutor’s breach.” Id. At *7–8. To the contrary, we
explained, the withdrawal “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 been given a choice.” Id. “Because Cuero had
already performed, ‘fundamental fairness demands that the
state be compelled to adhere to the agreement as well.’” Id.
at *8. Further, we explained, specific performance was
“necessary to maintain the integrity and fairness of the
criminal justice system” because “‘[i]f a defendant cannot
rely upon an agreement made and accepted in open court, the
fairness of the entire criminal justice system would be thrown
into question. No attorney in the state could in good
conscience advise his client to plead guilty and strike a
bargain if that attorney cannot be assured that the prosecution
must keep the bargain.’” Id. at *8 n.14. (quoting State v.
Tourtellotte, 564 P.2d 799, 802 (Wash. 1977) (en banc). In
other words, because withdrawal of the plea bargain had been
coerced by the State’s breach and because withdrawal was an
inadequate remedy for that breach, specific performance of
the withdrawn plea was required.

     The majority believes that Cuero is distinguishable
because of the procedural posture of that case, namely, that
Cuero initially argued breach and sought specific
                            FOX V. JOHNSON                                59

performance in state habeas court. That distinction, however,
is without a difference. Here, as in Cuero, the state breached
its agreement, and here, as in Cuero, the breach resulted in
the withdrawal of the plea agreement. In both cases, the
withdrawal “exposed” the defendant to the fundamentally
unfair risk of a potential life sentence. In both cases, the
withdrawal of the plea was meaningless, as it afforded “no
remedy.” See id. at *7. Accordingly, in both cases the proper
result as a matter of law was to enforce the original terms of
the bargain, not to withdraw the plea. In Cuero, however, we
reinstated the defendant’s withdrawn bargain, and here, we do
not. Put simply, the majority’s theory that withdrawal of the
plea “nullifies” the defendant’s ability to specifically enforce
a bargain, even though the withdrawal had been coerced by
the State’s breach, is inconsistent with our holding in Cuero.14

   In short, in every case to have addressed the question,
courts have recognized that, when the State breaches its plea


   14
      Indeed, the difference between the procedural posture in Cuero and
this case is not so great as the majority suggests. Both requested specific
performance only after their plea had already been withdrawn. In Cuero,
the defendant pleaded guilty to the charges in the amended complaint
subsequent to the withdrawal of his original plea, but before he requested
specific performance. See id. at *2 (“[T]he Superior Court allowed Cuero
to withdraw his guilty plea and enter a new plea agreement[.]”); see also
Cuero v. Cate, 2011 WL 7769328, at *2 (S.D. Cal. 2011) (explaining that,
subsequent to the amended complaint “Cuero withdrew his previous guilty
plea, and entered into a negotiated plea to the charges contained in the . . .
amended complaint, admitted two prior felonies contained therein, and a
stipulated 25-years-to-life-sentence.”). Cuero did not request specific
performance until his post-conviction habeas petition before the California
Court of Appeal. See Cuero, 2011 WL 7769328, at *6. In contrast, Fox
first requested specific performance at an even earlier procedural stage:
after the withdrawal of her plea, but before her subsequent conviction at
trial.
60                     FOX V. JOHNSON

agreement after the defendant has already substantially
performed his part of the bargain, withdrawal of the plea is no
remedy at all. Accordingly, by failing to give Fox specific
performance of her bargain and instead withdrawing her plea,
the State denied her the constitutional remedy to which she
was entitled.

     The majority would apparently distinguish all prior
reported cases on the patently erroneous assumption that Fox
voluntarily decided in 1989 to abandon the plea deal the State
had guaranteed her in order to seek to establish her innocence
in a new trial. It simply defies all logic and reason to believe
that Fox, having bargained for her release on parole following
seven and one-half years of imprisonment, having delivered
the testimony the State demanded in return for her relatively
short period of incarceration, and having served five years of
that seven and one-half year term, would have voluntarily
decided to refuse to serve her remaining two and a half years
in order to undergo a new trial on a more serious charge with
a possible, indeed almost certain, term of life without parole.
This is particularly obvious as she had little if any evidence
of innocence, had never seriously denied her guilt, and the
evidence of that guilt was overwhelming. Under a proper
reading of the record in this case, nothing whatsoever
supports the majority’s counter-factual conclusion or suggests
so unlikely and irrational an intent on Fox’s part. Rather, at
all times her effort was to obtain, by one means or another,
the state-promised limitation of seven and one-half years to
the sentence she was serving and was close to completing.
See supra pp. 39–40; see also infra pp. 61–64.
                      FOX V. JOHNSON                       61

   C. The State is not Excused from its Obligation to
      Provide A Meaningful Remedy by the Coerced
      Withdrawal of Fox’s Guilty Plea

    The majority believes that the State’s withdrawal of Fox’s
plea was appropriate because that was the remedy she sought.
There are several problems with this conclusion. First, it is
directly contrary to Santobello, which held that the remedy
must be selected by the state court based on the circumstances
of the case, not dictated solely by the defendant’s request.
Santobello, 404 U.S. at 262–63; id. at 267 (Douglas, J.
concurring). Although a defendant’s request for a specific
remedy is to be given “considerable” weight, that choice is
meaningless where, as here, the court does not know whether
the defendant has been fully advised of the possible options
and where the court has failed to determine the voluntariness
of the defendant’s request. Second, the context of Fox’s
request for withdrawal shows that she did not want to
withdraw the plea to which she had agreed, or to face trial on
the charges to which she had pled, let alone to a more serious
charge on which the State had agreed not to prosecute her.
Rather, she believed that her motion to “withdraw” from the
State’s version of the agreement would allow her to replead
to an offense that would ensure that she would receive the
benefit of her bargain. Third, Fox’s request for “withdrawal”
was coerced by the State’s false representations regarding the
nature of the plea agreement—she would not have filed a
petition at all if not for its repeated false denials of its
promise to her. Finally, as already discussed, specific
performance was the only proper remedy for the State’s
breach under the circumstances of the case. Fox’s request for
a different remedy constituted, at most, an involuntary,
unknowing, and uninformed waiver of her constitutional right
to the only true remedy: specific performance. The “waiver”
62                          FOX V. JOHNSON

thus is void, or at the least voidable, and cannot serve as the
basis for denying Fox the constitutional remedy to which she
is entitled.

    Under Santobello, courts have an obligation to determine
independently which remedy comports with due process and
fundamental fairness, regardless of the defendant’s initial
request.15 Id. at 262–63; id. at 267 (Douglas, J. concurring).
Indeed, a number of cases since Santobello have recognized
that due process requires specific performance in
circumstances similar to Fox’s: i.e., in cases in which the
defendant initially requested withdrawal of his plea. See, e.g.,
Cuero, 2016 WL 3563660; Duff, 551 F.2d at 186–87; Brooks,
243 S.E. 2d at 843.

    Of course, as Justice Douglas’s critical concurrence in
Santobello suggests, a defendant’s choice of relief should
ordinarily be given “considerable” weight in determining
which remedy due process requires, but that choice is without
force unless it was voluntarily, knowingly, and intelligently


  15
    This requirement serves a practical purpose. That withdrawal of the
plea is, in cases like Fox’s, not a constitutionally valid remedy is now
established. Thus, a defendant who requests withdrawal may, in fact, be
waiving a right to which he is constitutionally entitled. Judges, who
understand the consequences, legal and practical, of particular remedies,
are in the best position to ensure that the defendant understands his
options and constitutional rights before the plea is withdrawn—just as a
judge must ensure that the defendant understands his options and his
constitutional rights before his plea of guilty is accepted in the first place.
In fact, in many cases, the judge may be the only person capable of
ensuring that the defendant understands his options, because many
defendants are not represented by counsel during state collateral
proceedings. Moreover, those who are represented are not afforded
constitutional protection against the incompetence of their counsel. See
Pennsylvania v. Finley, 481 U.S. 551, 554 (1987).
                       FOX V. JOHNSON                        63

made. Here, although Fox asked to “withdraw” the plea, the
context makes clear that she wished to “withdraw” only from
the terms of the agreement that the State sought to
unilaterally enforce against her, not from the plea bargain as
she (correctly) understood it. Her petition stated that she “did
not understand that her period of confinement would exceed
seven and one-half years with good prison behavior.” The
truth was, of course, that her confinement could not, under
the terms of the actual plea agreement, be longer than seven
and one-half years with good behavior. See Brown, 337 F.3d
at 1161. Indeed, the state court of appeal found as much
following the State’s concession on Fox’s direct appeal. It
was only under the State’s fallacious version of the
agreement, which it attempted unilaterally to enforce against
her, that Fox could be imprisoned for longer than seven and
one-half years without parole.

    Fox simply had no objective reason to seek to invalidate
the actual plea agreement that promised her parole after the
agreed-upon period, nor is there any reason to believe that she
would have agreed to do so but for the State’s breach of its
promise. At no point prior to withdrawal did the superior
court ask Fox whether she wished to withdraw her plea and
face the possibility of trial or whether she wished to seek
specific enforcement. Further, as she testified at the 1999
hearing, she believed her motion to “withdraw” would
guarantee her the mutually agreed-upon seven and one-half
years by allowing her to receive the opportunity to replead to
a lesser offense—one that would permit compliance with
California sentencing law while still allowing her the
promised limited term of imprisonment. Indeed, shortly after
the court withdrew Fox’s plea, she moved for specific
performance, making clear that she had only sought to
“withdraw” from the plea that the State represented to be the
64                    FOX V. JOHNSON

bargain—a plea to which she in fact had never agreed. Thus,
it is impossible to conclude, as the majority so facilely does,
that Fox voluntarily withdrew her plea. Indeed, Fox’s request
to withdraw was coerced by the State’s repudiation of the
bargain. If not for the State’s actions, she in all likelihood
would not have filed the motion to withdraw, and even if she
had, the withdrawal would have been unlawfully coerced or,
to put it differently, unknowing, uninformed, and involuntary.

    Finally, the state court cannot be excused from its duty to
consider, and ultimately, grant specific performance as a
remedy simply because another ground existed for
withdrawal separate and apart from the State’s breach
regarding its promise of parole after seven and one-half years.
The court withdrew Fox’s plea without addressing the State’s
breach. It did so on the ground that Fox had not been advised
of a different parole term required by state law to be included
in her sentence: lifetime parole. State law at the time
permitted a defendant who had not been advised of the length
of the parole term following his release from prison to
withdraw his plea. See In re Carabes, 144 Cal. App. 3d 927,
928, 933 (Ct. App. 1983). Carabes did not, however, address
the case in which there has been both a failure to advise the
defendant about a term of the plea agreement and a breach of
the agreement itself; it certainly did not address a case in
which the plea had been breached after the defendant had
already substantially performed his part of the agreement.
Even if Fox could withdraw her plea on the basis of the
failure to advise her of the duration of parole, doing so would
not provide a constitutionally adequate remedy for the breach
of the plea agreement, and would, in effect, allow the State to
breach the agreement with impunity.
                          FOX V. JOHNSON                              65

     In my view, the result under the Due Process Clause is
clear: when there has been both a breach of the plea
agreement and some other, non-constitutional violation, (or
even a constitutional one) the state court must consider the
violations together in determining the appropriate remedy, or
at the least it cannot rule on the remedy for the other violation
without also considering the proper remedy for the breach of
the plea agreement. Santobello clearly states that a defendant
must be provided with a remedy for the State’s breach, and
that, in a number of circumstances, withdrawal will not be
proper even when the defendant requests it. 404 U.S. at
262–63; see also id. at 267 (Douglas, J. concurring).
Numerous cases since Santobello have held that when a
defendant has substantially performed his end of the bargain,
withdrawal is no remedy at all. See, e.g., Cuero, 2016 WL
3563660; Brown, 337 F.3d at 1161. It therefore follows that,
when there has been a breach and some other procedural plea
violation, courts must consider whether specific performance
is the appropriate remedy, even if withdrawal would be
appropriate for the procedural violation alone. Any other
result would deny defendants who have performed their part
of the bargain the constitutional remedy for the State’s breach
of the plea agreement to which they are entitled.16 Here, the


   16
      It may, of course, be the case that a defendant truly wishes to
withdraw his plea, even despite a breach. In such circumstances, a
defendant’s knowing, voluntary, and intelligent waiver of his
constitutional right to specific performance is something that the state
courts should consider when devising an appropriate remedy. See
Buckley, 441 F.3d at 699 n.11 (“[I]n a case in which the state has already
received the benefit of the bargain, the harm caused by its breach is
generally best repaired by specific performance of the plea agreement,
although a defendant may, if he so chooses, elect instead to rescind the
agreement and take his chances from there.”). A court cannot know
whether the defendant has made an appropriate “choice” of withdrawal,
66                         FOX V. JOHNSON

state court failed even to consider the State’s breach of the
plea agreement, and disposed of Fox’s claim solely on the
basis of the procedural violation. In doing so, it deprived Fox
of her right to due process of law.

    Two years after the state superior court revoked Fox’s
plea agreement, the California Supreme Court cautioned
lower courts against the very sin committed by the superior
court when it withdrew Fox’s plea without addressing the
State’s breach. The court explained that in “any given case,
there may be a violation of both the advisement requirement,
or the plea bargain, or both” and that when both types of error
are present and the defendant has already begun serving his
sentence, the defendant’s agreement should be specifically
enforced, rather than withdrawn because “permitting him to
withdraw his guilty plea cannot restore the status he enjoyed
before sentencing.” People v. Walker, 819 P.2d 861, 864
(Cal. 1991).17 Thus, the California Supreme Court belatedly
recognized, as a matter of state law, what courts across the
country had previously held as a matter of federal
constitutional law: when a defendant has substantially
performed his end of the bargain, or served a substantial


however, if it never informs the defendant of his rights, presents the
defendant with his options, and makes the inquiry necessary to determine
whether the request for withdrawal is voluntary. In this case, Fox’s efforts
to enforce the agreement pre-trial demonstrate clearly her preference for
enforcement over withdrawal of the plea.
 17
    Walker was subsequently overruled to the extent that it had held that
failure to advise a defendant of restitution where the plea bargain was
silent as to restitution was not a breach of the agreement, but merely a
failure to advise. See People v. Villalobos, 277 P.3d 179, 185 (Cal. 2012)
(in bank). That does not affect the result here, however. In fact, it makes
the constitutional violation even clearer.
                          FOX V. JOHNSON                              67

portion of his sentence, withdrawal of the bargain cannot
provide the constitutional remedy for the State’s breach that
due process requires.

     The superior court had two opportunities to remedy its
failure to provide Fox the constitutional remedy to which she
was entitled when, post-Walker, Fox filed her pre-trial
motions explaining that withdrawal was an inadequate
remedy for the breach of her plea. The court failed to take
advantage of those opportunities, and instead, without
discussing whether the earlier withdrawal was appropriate or
constitutional, denied both motions by means of a form order.
The court then had a third opportunity when Fox asked for
the benefit of her original bargain at sentencing, where she
explained that “there is and was no way that allowing her to
withdraw her plea” after so many years in prison “was fair or
just.” The state court again did not correct its prior errors,
and instead, sentenced Fox to life imprisonment without the
possibility of parole. These orders also were arbitrary and
capricious and furthered the State’s deprivation of her right
to a constitutional remedy for the State’s breach of the plea
agreement.18 Moreover, barring commutation of her sentence
by the governor, they sealed Fox’s fate for life.

      D. The Appropriate Remedy is Now to Grant Fox the
         Relief She Sought Thirty Years Ago

   In short, Fox’s plea agreement should never have been
withdrawn by the state court. Doing so was contrary to the
mandate of Santobello, its progeny and due process (as well


 18
    No prejudice to the court or the State could even arguably have been
used to justify the denial of Fox’s pre-trial (or even post-trial) motions
existed.
68                    FOX V. JOHNSON

as to California law). Further, it allowed the State to breach
its agreement with impunity, and instead, forced Fox alone to
bear the burden of the State’s constitutional errors. That
burden is a heavy one. Even though the State originally
agreed that the service of a prison sentence of seven and one-
half years prior to release on parole was sufficient for the
crime to which she pled, Fox will now likely die in prison for
that very same conduct.

    The majority believes that its decision is unavoidable
because even if Fox was, at one point, entitled to specific
performance, the time for that remedy has long passed. Once
the state court withdrew her plea bargain (whether voluntarily
or not), the majority argues, there was no longer an agreement
for it to enforce. This decision is in conflict with our recent
decision in Cuero v. Cate, in which we granted specific
performance after a plea had already been withdrawn. Even
absent the existence of Cuero, however, I do not believe that
the fundamental fairness that due process requires can be so
simply disregarded in the guise of adherence to a prior unfair
and unconstitutional judicial action. An injustice cannot
become just merely through the State’s compounding of its
error and the passage of time.

    Because the state court withdrew Fox’s plea without
considering the remedy of specific performance and because
withdrawal of her plea was involuntary, Fox was denied the
constitutional remedy required for the State’s breach. Her
subsequent efforts to reinstate and enforce that plea
agreement were also unconstitutionally denied. The resulting
conviction of Fox for a more serious crime on which the State
had promised not to prosecute her cannot stand. Accordingly,
this court should now do what should have been done three
decades ago: enforce the plea agreement upon which Fox and
                      FOX V. JOHNSON                        69

the State mutually agreed. It necessarily follows that we
should vacate the conviction on the charge of first degree
murder.

    Fox, who has served over twenty-five years in excess of
the seven and one-half years that she was promised, should be
released forthwith. She has already suffered more than
enough from the State’s violation of her constitutional rights.
I agree that we are incapable of remedying this travesty
entirely, because we cannot give Fox back the extra twenty-
five years she has spent in prison. I do not agree, however,
that we are unable to prevent the further perpetuation of this
inexcusable travesty of justice and become parties to the
unprecedented violation of Fox’s constitutional rights. I
respectfully dissent.
