                                                                              FILED
                           NOT FOR PUBLICATION                                 FEB 23 2011

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                           FOR THE NINTH CIRCUIT


KYLE DEBERRY,                                    No. 09-17434

              Petitioner - Appellant,            D.C. No. 3:04-cv-00858-SMM

  v.
                                                 MEMORANDUM*
CHARLES R. RYAN; TERRY L.
GODDARD,

              Respondents - Appellees.


                   Appeal from the United States District Court
                            for the District of Arizona
              Stephen M. McNamee, Senior District Judge, Presiding

                          Submitted February 18, 2011**
                            San Francisco, California

Before: TALLMAN and CALLAHAN, Circuit Judges, and CONLON, District
Judge.***




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
            The Honorable Suzanne B. Conlon, United States District Judge for
the Northern District of Illinois, sitting by designation.
      Petitioner Kyle DeBerry appeals the district court’s denial of a petition for a

writ of habeas corpus filed under 28 U.S.C. § 2254. DeBerry pled guilty to

manslaughter in the Superior Court of Coconino County, Arizona. He argues that

prosecutors breached their plea agreement when, during sentencing proceedings,

they described the homicide in a manner that suggested DeBerry committed

unprovoked first-degree murder as opposed to manslaughter.

      The Arizona State Court of Appeals held that prosecutors had argued the

degree of provocation, not its existence, so did not breach the agreement. DeBerry

argues that the state court of appeals decision was contrary to Santobello v. New

York, 404 U.S. 257 (1971), under 28 U.S.C. § 2254(d)(1) and based on an

objectively unreasonable factual determination in violation of § 2254(d)(2).

      The state court of appeals’ decision was not an unreasonable application of,

or contrary to, Santobello, 404 U.S. 257. See 28 U.S.C. 2254(d)(1). In Santobello,

prosecutors failed to keep a specific promise articulated in the agreement. Here,

the terms of the plea agreement were met. Furthermore, sentencing was left to the

court’s discretion and the prosecution never said or did anything to suggest it was

arguing for a harsher sentence than was already available for manslaughter. Nor

did prosecutors agree as part of the plea to remain silent at sentencing. The record




                                          2
does not support a conclusion that the state court was objectively unreasonable in

its application of Santobello.

      Regarding DeBerry’s claim under § 2254(d)(2), the court’s factual

determination was not unreasonable considering the totality of evidence presented

in the state-court proceeding. See Wood v. Allen, 130 S. Ct. 841, 848 n.1 (2010)

(internal citations omitted). Even though, in response to DeBerry’s argument that

provocation was extreme, prosecutors made statements that could reasonably be

interpreted as suggesting first-degree murder instead of manslaughter, they offered

additional evidence suggesting manslaughter, and reiterated on multiple occasions

that DeBerry was provoked into committing a non-premeditated killing.

Furthermore, nothing suggests prosecutors argued for life imprisonment or death,

the sentencing options available for first-degree murder. To the contrary,

prosecutors conceded to a sentence within the statutory range for manslaughter and

DeBerry received a sentence of sixteen years, five years less than the maximum

sentence available. Because the state court’s factual determination that prosecutors

were arguing that minimal provocation existed is not objectively unreasonable, this

claim fails as well.

      We decline to reach petitioner’s uncertified claim. See 28 U.S.C. §

2253(c)(2).


                                         3
AFFIRMED.




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