                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


MICHAEL DANIEL CUERO,              No. 12-55911
    Petitioner-Appellant,
                                     D.C. No.
           v.               3:08-cv-02008-BTM-WMC

MATTHEW CATE,
   Respondent-Appellee.                ORDER


     Appeal from the United States District Court
         for the Southern District of California
     Barry T. Moskowitz, District Judge, Presiding

         Argued and Submitted August 5, 2015
                 Pasadena, California

                 Filed March 8, 2017

 Before: Diarmuid F. O’Scannlain, Barry G. Silverman,
      and Kim McLane Wardlaw, Circuit Judges.

                        Order;
            Concurrence by Judge Wardlaw;
              Dissent by Judge Callahan
2                         CUERO V. CATE

                           SUMMARY*


                          Habeas Corpus

    The panel denied a petition for panel rehearing and, on
behalf of the court, a petition for rehearing en banc, in a case
in which the panel reversed the district court’s judgment
denying California state prisoner Michael Daniel Cuero’s
28 U.S.C. § 2254 habeas corpus petition and remanded with
instructions to issue a conditional writ requiring the state to
resentence Cuero in accordance with the original plea
agreement within 60 days of the issuance of the mandate.

    Concurring in the denial of rehearing en banc, Judge
Wardlaw, joined by Judge Silverman, wrote that there is no
need for the dissent’s “sky is falling” rhetoric, as this is the
rare case where the state court’s decision was contrary to
then-clearly established Supreme Court law governing guilty
pleas induced by agreements with the prosecutor.

    Judge Callahan, joined by Judges O’Scannlain, Tallman,
Bybee, Bea, M. Smith, and Ikuta, dissented from the denial
of rehearing en banc. She wrote that the three-judge panel
decision is not based on clearly established federal law, as the
Supreme Court has never held that the Due Process Clause
precludes post-plea, pre-judgment amendments to a
complaint; that the Supreme Court has never ordered the
reinstatement of an alleged plea agreement that was not in
effect at the time judgment was entered; and that such an


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

exercise of raw federal judiciary power is exactly what the
Antiterrorism and Effective Death Penalty Act prohibits.


                       COUNSEL

Devin Burstein (argued), Warren & Burstein, San Diego,
California, for Petitioner-Appellant.

Anthony Da Silva (argued) and Matthew Mulford, Deputy
Attorneys General; Julie L. Garland, Senior Assistant
Attorney General; Gerald A. Engler, Chief Assistant Attorney
General; Kamala Harris, Attorney General of California;
Office of the Attorney General, San Diego, California; for
Respondent-Appellee.
4                         CUERO V. CATE

                              ORDER

    Judges Silverman1 and Wardlaw have voted to deny the
petition for panel rehearing and rehearing en banc. Judge
O’Scannlain has voted to grant the petition for panel
rehearing and rehearing en banc.

    The full court was advised of the petition for rehearing en
banc. A judge requested a vote on whether to rehear the
matter en banc. The matter failed to receive a majority of the
votes of the nonrecused active judges in favor of en banc
consideration. Fed. R. App. P. 35.

  The petition for panel rehearing and rehearing en banc is
DENIED.

    IT IS SO ORDERED.



WARDLAW, Circuit Judge, with whom SILVERMAN,
Circuit Judge, joins, concurring in the denial of rehearing en
banc:

    The panel majority opinion speaks for itself. I
respectfully suggest that there is no need for the dissent’s “the
sky is falling” rhetoric. This is the rare case where the state
court’s decision was contrary to then-clearly established
Supreme Court law governing guilty pleas induced by
agreements with the prosecutor. It is no wonder that a


  1
    Judge O’Scannlain and Judge Silverman both voted on the petition for
rehearing en banc while they were in active status.
                           CUERO V. CATE                                 5

majority of our active judges declined to rehear this simple
appeal en banc.

                                    I.

     On October 18, 2005, the San Diego County District
Attorney’s Office filed a criminal complaint against Cuero.
The complaint, as amended, charged Cuero with two felonies,
causing great bodily injury to another while driving under the
influence and being a felon in possession of a firearm, as well
as with a misdemeanor charge of being under the influence of
a controlled substance. The state alleged, based on its review
of Cuero’s criminal history, that Cuero had a single strike for
first-degree burglary and three additional prior convictions
resulting in prison terms that did not constitute strikes.

    Cuero and the prosecution reached a plea agreement,
which they reduced to writing. Cuero would plead guilty to
the two substantive felony counts listed in the first amended
complaint and admit his four prior convictions. In exchange,
the state would drop the misdemeanor charge from the
complaint. This agreement represented a charge bargain
only, not a sentence bargain.1 As indicated on the plea



  1
    Charge bargains “consist[] of an arrangement whereby the defendant
and prosecutor agree that the defendant should be permitted to plead guilty
to a charge less serious than is supported by the evidence.” 5 Wayne R.
LaFave et al., Criminal Procedure § 21.1(a) (4th ed. 2016). Sentence
bargains “involve[] an agreement whereby the defendant pleads . . . to the
original charge[] in exchange for some kind of promise from the
prosecutor concerning the sentence to be imposed.” Id. In short, in a
charge bargain the deal relates to the charges the prosecution will bring
and to which the defendant will plead, while in a sentence bargain the
parties reach an agreement over the prosecution’s sentencing
6                        CUERO V. CATE

agreement, the parties did not agree to a particular sentence,
leaving sentencing to the court within the maximum statutory
sentence of 14 years, 4 months of incarceration.

    On December 8, 2005, Cuero pleaded guilty pursuant to
the terms of the plea deal. During the change-of-plea
proceeding, the court reviewed the plea agreement, signed by
both defense counsel and the state prosecutor, and noted that
the parties had left the “sentence for the Court” and that
Cuero had made no sentencing deals “with the People.” The
court confirmed that Cuero had heard “the plea agreement
that [the court] described,” that it was his “full and complete
understanding of the agreement to settle this case” and that he
“wish[ed] to accept the agreement to this case.” The judge
also explained that “[i]n addition to the plea agreement,” the
document set forth the constitutional rights Cuero
relinquished by pleading guilty.

     Cuero fully performed his obligations under the plea
bargain, pleading guilty and waiving his constitutional and
other rights. The government then moved to dismiss the
misdemeanor count “in light of the plea,” carrying out its own
obligation under the agreement. Once Cuero pleaded guilty
to the relevant charges and the prosecution moved to drop the
misdemeanor charge, the trial judge signed the court’s
“Finding and Order” accepting Cuero’s plea and admissions
and concluding that Cuero was “convicted thereby.” The
court scheduled sentencing for January 11, 2006.

   While preparing for sentencing, the prosecution
apparently concluded that another of Cuero’s prior


recommendation. This distinction is also reflected in Federal Rule of
Criminal Procedure 11.
                       CUERO V. CATE                         7

convictions constituted a strike. Though the prosecutor was
previously aware of this conviction (as evidenced by the fact
she charged it in the complaint to which Cuero had pleaded
guilty pursuant to the plea deal), she did not initially notice
that the prior conviction could be counted as a strike.
Notwithstanding the written agreement “to settle this case”
and Cuero’s preexisting guilty plea and conviction, the
prosecution moved to amend the complaint to add a second
strike and two additional felony priors, drastically increasing
Cuero’s sentencing exposure from a maximum of 14 years, 4
months to a minimum of 25 years and a maximum of 64 years
to life. A different Superior Court judge than the one who
accepted the plea agreement and signed the conviction papers
permitted, over defense counsel’s objection, the prosecutor to
“amend” the charging document. Cuero, deprived of the
benefit of his original bargain and having no other choice,
entered into a new plea agreement exposing him to a
maximum sentence of 25 years to life. On April 20, 2006, the
new trial judge sentenced Cuero to 25 years to life.

                              II.

    Under the Antiterrorism and Effective Death Penalty Act
(“AEDPA”), a habeas petition may not be granted unless the
state court’s adjudication of the claim under review “resulted
in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law”
or “resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.” 28 U.S.C. § 2254(d).
“[C]learly established Federal law under § 2254(d)(1) is the
governing legal principle or principles set forth by the
Supreme Court at the time the state court renders its
decision.” Lockyer v. Andrade, 538 U.S. 63, 71–72 (2003)
8                         CUERO V. CATE

(internal quotation marks omitted). At the time of the state
court’s decision, Supreme Court precedent clearly established
that it was a violation of Michael Cuero’s due process rights
for the prosecution to seek to amend its complaint after Cuero
entered a guilty plea induced by a plea agreement with the
State. The trial judge’s decision to allow the prosecution to
amend the complaint after Cuero pleaded guilty and was
convicted pursuant to the agreement thus violated clearly
established Supreme Court law, satisfying AEDPA’s
requirements.

    First, Santobello v. New York holds that “when a plea
rests in any significant degree on a promise or agreement of
the prosecutor, so that it can be said to be part of the
inducement or consideration, such promise must be fulfilled.”
404 U.S. 257, 262 (1971); see also Bordenkircher v. Hayes,
434 U.S. 357, 362 (1978) (“[A] prosecutor’s plea-bargaining
promise must be kept.”). Santobello stands for the
proposition that “a criminal defendant has a due process right
to enforce the terms of his plea agreement.” Buckley v.
Terhune, 441 F.3d 688, 694 (9th Cir. 2006) (en banc).2

    Second, the Court in Mabry v. Johnson instructed us that
a guilty plea entered pursuant to a plea agreement “implicates
the Constitution.” 467 U.S. 504, 507–08 (1984) (“A plea
bargain standing alone is without constitutional significance
. . . . It is the ensuing guilty plea that implicates the
Constitution. Only after respondent pleaded guilty was he


    2
   This language from Buckley and other citations to circuit precedent in
the panel majority opinion guided our analysis only “for the limited
purpose of assessing what constitutes ‘clearly established’ Supreme Court
law and whether the state court applied that law unreasonably.” Woods v.
Sinclair, 764 F.3d 1109, 1121 (9th Cir. 2014).
                       CUERO V. CATE                          9

convicted, and it is that conviction which gave rise to the
deprivation of respondent’s liberty at issue here.”); see also
Kercheval v. United States, 274 U.S. 220, 223 (1927) (“A
plea of guilty . . . is itself a conviction. Like a verdict of a
jury it is conclusive. . . . [T]he court has nothing to do but
give judgment and sentence.”). My dissenting colleagues
incorrectly claim that Mabry did not determine the point at
which a defendant’s due process right to enforce his plea
agreement attaches. Yet the central issue in Mabry was
whether due process concerns are implicated when a
defendant accepts the prosecution’s offer of a plea deal or
only when the defendant pleads guilty in detrimental reliance
on the plea agreement. See Mabry, 467 U.S. at 507–10. The
core holding of Mabry is thus that a plea of guilty induced by
a plea agreement triggers due process protection.

    Together, these Supreme Court cases clearly establish that
a defendant whose guilty plea was induced by a prosecutorial
promise is constitutionally entitled to fulfillment of that
promise and that a subsequent prosecutorial breach of the
plea agreement violates the defendant’s due process rights.
Once Cuero fully performed his promise to plead guilty and
the government moved to dismiss his misdemeanor charge,
Cuero stood “convicted” pursuant to a “Finding and Order”
signed by the judge. According to Mabry, at that point
Cuero’s plea agreement transformed from an “executory
agreement” that did not “implicate[] the Constitution” to one
that bore “constitutional significance” because Cuero’s guilty
plea and conviction were induced by the prosecutor’s
agreement to the reduced charges. 467 U.S. at 507–08.
Cuero’s plea rested on a promise of the prosecutor, requiring
that promise to be “fulfilled.” Santobello, 404 U.S. at 262.
The plea bargain became a constitutionally enforceable
10                     CUERO V. CATE

agreement, and Cuero was entitled to have the prosecution
carry out its end of the deal.

    There is absolutely no support for the dissent’s
supposition that whether the Due Process Clause is implicated
turns on whether the defendant has been sentenced and final
judgment rendered. In fact, the Supreme Court has held
distinctly contrary to the dissent’s view. In Santobello, the
Supreme Court addressed the Due Process Clause’s
application to circumstances strikingly similar to Cuero’s. At
the point when the prosecution breached Santobello’s plea
agreement, a judgment setting forth the sentence had not been
entered. The prosecution had promised in the pre-judgment
plea agreement that it would not make a sentencing
recommendation, and Santobello pleaded guilty in
accordance with that agreement. 404 U.S. at 258–59. At
sentencing, the government broke its promise by urging the
court to adopt the maximum available sentence, one year. Id.
at 259. The Supreme Court held that Santobello had a due
process right to enforce the terms of his plea agreement,
finding that the prosecutor breached the agreement and that
“the adjudicative element inherent in accepting a plea of
guilty” must contain safeguards to protect the rights of
defendants, including the right to have a prosecutorial
promise fulfilled when such promise was used to induce a
guilty plea. Id. at 262 (emphasis added).

    Defendants routinely promise pursuant to plea agreements
both to plead guilty and to cooperate by testifying at a
codefendant’s trial. The defendant enters his plea, the plea is
accepted by the court, but he is not sentenced until after he
fully cooperates, and therefore a final judgment is not
immediately entered. According to the dissent’s analysis,
because the defendant has not been convicted and final
                      CUERO V. CATE                        11

judgment has not been entered, an amendment of the charging
document at that point would be constitutionally permissible.
Yet it would be a clear violation of a defendant’s due process
rights to allow the prosecution to breach the agreement by
seeking to amend the complaint or indictment at that stage,
once the defendant had already fully performed his end of the
bargain by testifying against his codefendant. It therefore
cannot be the case that due process rights do not attach until
the defendant has already been sentenced and “final
judgment” entered.       The dissent’s discussion of the
distinction between a guilty plea and the entry of judgment
(which carefully omits the fact of conviction following entry
of a plea) is thus a distinction without a difference to our
analysis.

    Similarly, the dissent’s argument that the original plea
agreement “was not in effect at the time judgment was
entered” and therefore lacks constitutional significance begs
the question. The original plea deal was “in effect” when
Cuero first pleaded guilty and was convicted pursuant to his
plea. To the extent the agreement ceased to be “in effect,”
this was solely because in the interim the government was
allowed to breach the agreement, leaving Cuero no choice but
to plead a second time to a different complaint and be
convicted once more. The dissent’s argument reduces to the
proposition that because the government breached the first
plea agreement, Cuero’s guilty plea and resulting conviction
induced by that plea agreement did not implicate due process,
creating a catch-22 for Cuero and like defendants. According
to my dissenting colleagues, the due process right to enforce
a plea agreement would apply only where the prosecutor had
not previously breached it.
12                     CUERO V. CATE

                              III.

     The dissent similarly holds an alternative view of state
law untethered to reality. California state law treats guilty
pleas entered without the inducement of a plea agreement
with the State differently from those that are entered pursuant
to a plea deal. Under California law, the rights of both parties
to back out of the plea agreement terminated once Cuero
entered his plea pursuant to the parties’ agreement and was
convicted. Cuero did not simply enter a plea that he could
withdraw. The trial court “made the requisite factual findings
and accepted the plea,” Brown v. Poole, 337 F.3d 1155, 1159
(9th Cir. 2003), and concluded that Cuero was “convicted
thereby.” Once the plea was accepted and Cuero was
convicted, he could no longer withdraw his guilty plea absent
good cause and an exercise of discretion by the court. Cal.
Penal Code § 1018. Similarly, California Penal Code
§ 969.5, while allowing the prosecution to amend a complaint
after the entry of guilty pleas without plea agreements, does
not allow the prosecution to amend its complaint following a
guilty plea that was induced by prosecutorial promises
embedded in a plea agreement. Instead, under California law,
“a prosecutor may withdraw from a plea bargain at any time
before the defendant pleads guilty or otherwise detrimentally
relies on that bargain.” 3 B.E. Witkin et al., California
Criminal Law § 382 (4th ed. 2012) (emphasis added); see
also People v. Superior Court (Alvarado), 255 Cal. Rptr. 46,
50–51 (Ct. App. 1989). California law does not permit
amendment to the complaint when the guilty plea is entered
in reliance on a plea agreement precisely because such an
interpretation would run afoul of the due process protections
that attach under those circumstances. The dissent is
therefore wrong as a matter of state as well as constitutional
law.
                      CUERO V. CATE                        13

                             IV.

    The dissent further misstates California law providing the
requisite remedy for the prosecution’s breach. As the dissent
acknowledges, the Supreme Court has clearly established that
“the construction of [a] plea agreement and the concomitant
obligations flowing therefrom are, within broad bounds of
reasonableness, matters of state law.” Ricketts v. Adamson,
483 U.S. 1, 5 n.3 (1987). Moreover, both Supreme Court and
California precedent provide that plea agreements are to be
interpreted in accordance with state contract law. See Puckett
v. United States, 556 U.S. 129, 137 (2009) (“[P]lea bargains
are essentially contracts.”); People v. Segura, 188 P.3d 649,
656 (Cal. 2008) (“A plea agreement is, in essence, a contract
between the defendant and the prosecutor to which the court
consents to be bound.” (quoting People v. Ames, 261 Cal.
Rptr. 911, 913 (Ct. App. 1989))). “A negotiated plea
agreement is a form of contract, and it is interpreted
according to general contract principles.” People v. Shelton,
125 P.3d 290, 294 (Cal. 2006).

    By seeking to amend the complaint after Cuero waived all
his rights, pleaded guilty and was convicted, the prosecution
breached the fundamental promise it made to Cuero: The
State agreed to drop a charge and thereby limit Cuero’s
maximum exposure to 14 years, 4 months incarceration. The
foundation of a charge bargain is that the parties reach an
agreement as to what the prosecution will and will not charge
and to what the defendant will plead. See LaFave, supra, at
§ 21.1(a). By definition, a charge bargain means that the
prosecution will not later add charges or strikes, just as the
defendant will not plead to less than the agreed-upon charges
and strikes. The government’s attempt to amend the
14                          CUERO V. CATE

complaint unequivocally breached its central promise to
Cuero.3

    “Where a plea agreement is breached, the purpose of the
remedy is, to the extent possible, to repair the harm caused by
the breach.” Buckley, 441 F.3d at 699 (internal quotation
marks omitted) (quoting People v. Toscano, 20 Cal. Rptr. 3d
923, 927 (Ct. App. 2004) (citing People v. Kaanehe, 559 P.2d
1028, 1036–37 (Cal. 1977))). California law calls for specific
performance “when it will implement the reasonable
expectations of the parties without binding the trial judge to
a disposition that he or she considers unsuitable under all the
circumstances.” People v. Mancheno, 654 P.2d 211, 215
(Cal. 1982). “When the breach [alleged] is a refusal by the


 3
    The dissent also argues that the state prosecutor made a mistake in the
original plea agreement, which could entitle the prosecution to rescission.
First, the state has never raised the issue of rescission based on mistake in
the many years of briefing in this case, so the argument is waived.
Second, there is no evidence that the state prosecutor’s original promises
under the first plea agreement arose from a “mistake.” It is equally likely
that the prosecution forewent additional legal research and investigation
in order to secure a quick, favorable resolution of this case. Third, the
government’s putative “mistake” regarding whether Cuero’s prior
conviction constituted a strike under California law would have been a
mistake of law, not a mistake of fact, and California law does not permit
rescission of a contract based on a party’s unilateral mistaken
interpretation or application of the law. See Cal. Civ. Code §§ 1578,
1689(b)(1). Finally, even if the standard permitting rescission for certain
unilateral mistakes of fact applied here, rescission is not available to a
party whose mistake of fact was the result of its own negligence, see Cal.
Civ. Code § 1577, as was the government’s late “discovery” of Cuero’s
strike here: The government had access to all the information necessary
to conclude that Cuero’s second prior conviction constituted a strike, and
its failure to do so before entering the plea agreement was exclusively the
result of its own negligence at best or a calculated, though incorrect,
decision at worst.
                       CUERO V. CATE                          15

prosecutor to comply with the agreement, specific
enforcement would consist of an order directing the
prosecutor to fulfill the bargain and will be granted where
there is a substantial possibility that specific performance will
completely repair the harm caused by the prosecutor’s
breach.” People v. Timothy N. (In re Timothy N.), 157 Cal.
Rptr. 3d 78, 88 (Ct. App. 2013) (alteration in original)
(internal quotation marks omitted) (quoting Kaanehe, 559
P.2d at 1036).

    Here, the sole remedy available to implement Cuero’s
reasonable expectations was specific performance.
“Permitting” Cuero to withdraw his guilty plea and plead
guilty to the constitutionally defective amended complaint,
the alternative remedy proposed, did not repair the harm
caused by the breach; instead, it allowed the prosecution to
achieve the precise outcome it sought in breaching the plea
agreement. Protection of Cuero’s due process rights therefore
“leaves specific performance as the only viable remedy.”
Brown, 337 F.3d at 1161.

                               V.

    Finally, the panel majority opinion has none of the
broader implications my dissenting colleagues would ascribe
to it. The opinion does not alter the existing dynamic
between the prosecutor and the defendant. Prosecutors are
already constitutionally required to uphold their end of plea
agreements following the entry of a guilty plea and
conviction, see Santobello, 404 U.S. at 262—a proposition
that no one can fairly find surprising. Neither party to a
binding plea agreement is permitted to renege on that
agreement because he may have entered it on the wrong
assumptions. If the prosecution is troubled by its inability to
16                     CUERO V. CATE

breach a binding plea agreement if further information about
a defendant’s criminal history comes to light, contractual
provisions can and do minimize that risk. Here, for example,
the original plea agreement could have provided that if the
state later learned that one of the charged priors qualified as
a strike, the court could treat it as such for sentencing
purposes. And contrary to my dissenting colleagues’
contention, the panel majority opinion does not apply where
the defendant misrepresents his identity or prior convictions
and thereby fraudulently induces the government to enter a
plea agreement that does not reflect his full criminal history.
In this case, the government had access to accurate and
adequate information about Cuero’s prior convictions at the
time of the original plea agreement and merely neglected to
reflect his full criminal history in the original amended
complaint.

    It is only by abstracting to the highest level—noting that
“plea agreements play an instrumental part in our criminal
justice system”—that my dissenting colleagues can claim that
this case impedes the administration of criminal justice in
California. No one disputes that plea agreements are an
“essential component of the administration of justice.”
Santobello, 404 U.S. at 260. Yet the majority opinion in no
way interferes with the ability of the state to conduct plea
negotiations and enter plea agreements. Indeed, it is the
dissent’s interpretation of the Due Process Clause and
California Penal Code § 969.5—as enabling the prosecution
to back out of charge bargains already accepted by the court
and fully performed by the defendant—that would undermine
the stability of the plea bargaining system by rendering such
bargains illusory and untrustworthy. If a prosecutor could
unilaterally renege on a plea bargain that had been accepted
by the court and fully performed by a defendant, defendants
                          CUERO V. CATE                             17

would likely lose faith in the plea bargaining system and
would rationally require more substantial promises from the
prosecution to secure their participation.



CALLAHAN, Circuit Judge, with whom O’SCANNLAIN,
TALLMAN, BYBEE, BEA, M. SMITH, and IKUTA, Circuit
Judges, join, dissenting from the denial of rehearing en banc:

    For the second time in roughly as many weeks, we invite
summary reversal by the Supreme Court in a state court
habeas case.1 The three-judge panel decision here is not
based on clearly established federal law, as the Supreme
Court has never held that the Due Process Clause precludes
post-plea, pre-judgment amendments to a complaint. Nor has
the Supreme Court ever ordered the reinstatement of an
alleged plea agreement that was not in effect at the time
judgment was entered. Such an exercise of raw federal
judiciary power, though, is exactly what the Antiterrorism
and Effective Death Penalty Act (“AEDPA”), 28 U.S.C.
§ 2254, prohibits. I respectfully dissent from our refusal to
rehear this case en banc.

I. BACKGROUND

    On October 14, 2005, Michael Cuero (“Cuero”) crashed
his vehicle into Jeffrey Feldman, who was standing on the
side of the road next to his parked pickup truck. At the time,
Cuero did not have a valid driver’s license, was under the

 1
   The other case we refused to rehear en banc was Hardy v. Chappell,
832 F.3d 1128 (9th Cir. 2016), reh’g en banc denied, — F.3d — (9th Cir.
2017).
18                         CUERO V. CATE

influence of methamphetamine, and was on active parole for
prior drug violations. Although the record is silent as to the
injuries Cuero sustained from the crash, he maintained the
wherewithal and physical ability to dispose of the 9mm
semiautomatic pistol that he, as a felon, was unlawfully
possessing. Feldman, on the other hand, was not so fortunate.
He had to be airlifted to the nearest trauma center, where he
immediately underwent emergency surgery and was put on
life support. Among other things, Feldman suffered a severe
brain injury, fractures to all the bones in his face, and a
ruptured spleen. Feldman’s prognosis was grim and his
treating physicians believed he would never be able to work
again.

    A few days after the crash, the People filed its initial
criminal complaint against Cuero. On October 28, 2005, the
People filed an amended criminal complaint, alleging that
Cuero: (1) inflicted serious bodily injury to Feldman while
driving under the influence of alcohol or drugs and that he did
so within ten years of a driving under the influence
conviction, a felony; (2) possessed a firearm as a felon, a
felony; and (3) was under the influence of a controlled
substance, a misdemeanor. The People also alleged that
Cuero had served four prior prison terms2 and that one of his
prior convictions—for residential burglary—constituted a
strike.

    On December 8, 2005, Cuero pleaded guilty to inflicting
serious bodily injury while driving under the influence and to
unlawful possession of a firearm. Additionally, Cuero
admitted that he had served four prior prison terms and that

  2
    For each prior prison term, an additional one-year, consecutive prison
term is added. See Cal. Penal Code § 667.5(b).
                            CUERO V. CATE                             19

his residential burglary conviction was a strike. Following
Cuero’s plea, the Superior Court granted the People’s motion
to dismiss the remaining misdemeanor count. In light of his
pleas and admissions, Cuero’s maximum punitive exposure
was 14 years, 4 months. It is not clear whether Cuero’s plea
was based on an agreement with the People; there is evidence
that it was not.3 There is no evidence, though, that the People
agreed to recommend a particular sentence or to waive its
ability to later amend the complaint to add a charge or strike.

    In preparing the sentencing memorandum and upon
further investigation, the prosecuting attorney discovered that
Cuero had two additional serious felony convictions and an
assault-with-a-deadly-weapon conviction that constituted yet
another strike.4 On January 11, 2006, pursuant to California
Penal Code section 969.5,5 the People filed a motion to

 3
   For instance, in response to the plea form’s question of whether he had
“been induced to enter [his] plea by any promise or representation of any
kind,” Cuero wrote: “STC–NO DEALS W/ THE PEOPLE.” See Cuero
v. Cate, 827 F.3d 879, 915 (9th Cir. 2016) (O’Scannlain, J., dissenting).
Based on the judge’s statements at the plea hearing, “STC” appears to
stand for “sentence for the court.” Id. at 901 n.7 (O’Scannlain, J.,
dissenting).
     4
       Under California law, whether an assault-with-a-deadly-weapon
conviction constitutes a strike is based on the conviction’s underlying
facts. See, e.g., People v. Winters, 93 Cal. App. 4th 273, 280 (2001)
(noting that not all assault-with-a-deadly-weapon convictions constitute
a strike).
 5
     California Penal Code section 969.5(a) provides:

          Whenever it shall be discovered that a pending
          complaint to which a plea of guilty has been made
          under Section 859a does not charge all prior felonies of
          which the defendant has been convicted either in this
20                        CUERO V. CATE

amend the criminal complaint to add the two serious felony
convictions and allege that Cuero’s assault-with-a-deadly
weapon conviction was an additional strike.6 Cuero
challenged the amendment, arguing that the Superior Court,
exercising the discretion afforded to it by California Penal
Code section 969.5, should deny the request because it was
untimely and would prejudice him. However, Cuero did not
contend that the requested amendment violated the Due
Process Clause or California contract law.

    Following a hearing on February 2, the Superior Court
granted the People’s request. The Superior Court based its
decision on section 969.5’s language and its belief that
existing case law demonstrated that an increase in exposure
due to an amendment does not impact a defendant’s
substantial rights. After announcing its decision, the Superior
Court asked Cuero if he wished to withdraw his plea. Cuero
responded by requesting time to make his determination,
which the Superior Court afforded him. Thereafter, the
People filed a second amended complaint, which raised
Cuero’s possible exposure to a sentence of 64 years to life.


        state or elsewhere, the complaint may be forthwith
        amended to charge the prior conviction or convictions
        and the amendments may and shall be made upon order
        of the court. The defendant shall thereupon be
        arraigned before the court to which the complaint has
        been certified and shall be asked whether he or she has
        suffered the prior conviction. If the defendant enters a
        denial, his or her answer shall be entered in the minutes
        of the court. The refusal of the defendant to answer is
        equivalent to a denial that he or she has suffered the
        prior conviction.
  6
    Each prior “serious felony” conviction adds a five-year enhancement
to a defendant’s sentence. Cal. Penal Code § 667(a)(1).
                          CUERO V. CATE                               21

    Sometime during the next month and a half, Cuero
reached an agreement with the People. In exchange for
Cuero pleading guilty to inflicting great bodily injury to
Feldman while driving under the influence of a drug and
admitting the alleged two prior strikes, the People agreed to
withdraw the second amended complaint and charge Cuero
with only inflicting great bodily injury to Feldman while
driving under the influence of a drug and having two prior
strikes, which had the effect of dramatically reducing Cuero’s
exposure.

    At the change-of-plea hearing held on March 27, 2006,
the People filed a third amended complaint (“TAC”)
reflecting these changes. Cuero withdrew his previous guilty
plea and pleaded guilty to the TAC’s single charge. Cuero
also admitted to the two prior strikes contained in the TAC
and stipulated to a 25-years-to-life sentence.

    The sentencing hearing was held on April 20, 2006. At
no point leading up to it did Cuero attempt to withdraw from
his plea or ask the Superior Court to exercise its discretion
and sentence him to less than 25 years to life, which he could
have done.7 The Superior Court sentenced Cuero to what it
had said it would—25 years to life.




 7
   As noted in People v. Superior Court (Romero), 13 Cal. 4th 497, 504,
529–30 (1996), pursuant to California Penal Code section 1385(a), a trial
court may dismiss a strike if it is in furtherance of justice.
22                          CUERO V. CATE

    On direct appeal, Cuero’s counsel filed a Wende brief8
and asked the California Court of Appeal to review the record
for error. Specifically, counsel directed the appellate court’s
attention to the “possible but not arguable issue[]” of
“whether the [People’s] amendment violated the terms of the
earlier plea agreement in violation of due process.” The
appellate court afforded Cuero the opportunity to file a
separate brief, but Cuero chose not to do so. After
“review[ing] the entire record,” on March 21, 2007, the Court
of Appeal found that there was “no reasonably arguable
appellate issue” and affirmed the Superior Court.

   Thereafter, Cuero petitioned for habeas relief in the
Superior Court, California Court of Appeal, and California
Supreme Court, all of which denied Cuero’s request for relief.
Cuero then filed a federal habeas petition in the District
Court, which was also denied and serves as the basis for this
appeal.

II. DISCUSSION

    A federal habeas petition challenging state custody shall
be denied “unless the [state court’s] adjudication of the
claim[] 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.” 28 U.S.C. § 2254(d)(1) (emphasis added). “A
decision is ‘contrary to’ Supreme Court precedent where ‘the
state court arrives at a conclusion opposite to that reached by
the Supreme Court on a question of law or if the state court


 8
    A Wende brief, named after People v. Wende, 25 Cal. 3d 436 (1979),
is similar to a brief filed in federal court pursuant to Anders v. California,
386 U.S. 738 (1967).
                          CUERO V. CATE                              23

decides a case differently than the Supreme Court has on a set
of materially indistinguishable facts.’” Jones v. Harrington,
829 F.3d 1128, 1135 (9th Cir. 2016) (alterations in original
omitted) (quoting Williams v. Taylor, 529 U.S. 362, 413
(2000)). “A state court unreasonably applies clearly
established federal law if it ‘identifies the correct governing
legal rule but unreasonably applies it to the facts of the
particular state prisoner’s case.’” Id. (alterations in original
omitted) (quoting White v. Woodall, 134 S. Ct. 1697, 1705
(2014)). State court decisions are to be measured “against
[the Supreme Court’s] precedents as of ‘the time the state
court renders its decision.’” Greene v. Fisher, 132 S. Ct. 38,
44 (2011) (emphasis in original) (quoting Lockyer v.
Andrade, 538 U.S. 63, 71–72 (2003)).

    The majority finds that the Superior Court’s approval of
the People’s request to amend was both contrary to and an
unreasonable application of clearly established law.9 Cuero
v. Cate, 827 F.3d 879, 883 (9th Cir. 2016). In reaching this
erroneous conclusion, the majority goes beyond the scope of
what Supreme Court precedent instructs. Rather than
interpret “clearly established Federal law, as determined by
the Supreme Court of the United States,” the majority gives
the Due Process Clause an overbroad and unprecedented
interpretation that intrudes upon the just and orderly
administration of justice in California and other states within
the Ninth Circuit.




  9
    In light of its finding that habeas relief was warranted based on the
People’s court-approved amendment, the majority did not address Cuero’s
ineffective assistance of counsel claim. See Cuero, 827 F.3d at 883 n.4.
24                    CUERO V. CATE

     A. The Superior Court’s approval of the People’s
        requested amendment was neither contrary to nor
        an unreasonable application of clearly established
        Supreme Court precedent.

    First, the Supreme Court has never held that the Due
Process Clause prevents a state prosecutor from amending a
criminal complaint post-plea, pre-judgment.           Second,
California Penal Code sections 969.5, 1009, and 1192.5
specifically allow for post-plea amendments of complaints,
and no California court has limited any of the section’s
application to instances where a defendant pleaded without an
agreement. Third, the Supreme Court has never held that
specific performance is the only remedy for alleged violations
of the Due Process Clause during the plea bargaining process
or that federal appellate courts, as opposed to state courts,
should fashion the remedy for any such violation. In fact, it
has held the opposite.

        1. Supreme Court precedent does not clearly
           establish that the People’s post-plea, pre-
           judgment amendment implicates the Due
           Process Clause.

    The majority claims that “a guilty plea seals the deal
between the state and the defendant, and vests the defendant
with a due process right to enforce the terms of his plea
agreement.” Cuero, 827 F.3d at 885 (internal quotation
marks omitted). But—as the majority’s citation of only three
Ninth Circuit cases reveals—the Supreme Court has never
applied the Due Process Clause to a plea agreement that was
                           CUERO V. CATE                              25

not in effect at the time judgment was entered.10 Thus, even
assuming that Cuero’s initial guilty plea was pursuant to a
plea agreement, there is no basis to conclude that the Superior
Court acted contrary to or unreasonably applied clearly
established Supreme Court precedent by exercising its
statutorily-based authority and approving the People’s request
to amend the complaint. See, e.g., Lopez v. Smith, 135 S. Ct.
1, 4 (2014) (per curiam) (stating that precedent must address
“the specific question presented by th[e] case”).

    In its conclusion, the majority states that, “[b]y allowing
the prosecution to breach the agreement, reneging on the
promise that induced Cuero’s plea, the state court violated
federal law clearly established by the Supreme Court in
Santobello [v. New York, 404 U.S. 257 (1971)].” Cuero, 827
F.3d at 891. However, Santobello is clearly distinguishable.
There, the defendant agreed to plead guilty in exchange for
the government’s explicit promise not to make a sentence
recommendation. 404 U.S. at 258. Following the Santobello
defendant’s guilty plea, though, the government violated the
parties’ agreement by asking for the maximum possible
sentence. Id. at 259. Significantly, unlike Cuero, the
defendant in Santobello was never afforded the opportunity
to back out of the parties’ agreement and withdraw his plea.
Id. at 263. Therefore, at the time judgment was entered, the
defendant in Santobello remained bound by the agreement he
had reached with the government, despite the government’s


   10
       While the language in some of our opinions may support the
majority’s conclusion, it is the Supreme Court’s precedent, not ours, that
matters here. See, e.g., Glebe v. Frost, 135 S. Ct. 429, 431 (2014) (per
curiam) (noting that the Supreme Court has “repeatedly emphasized [that]
circuit precedent does not constitute clearly established Federal law, as
determined by the Supreme Court” (internal quotation marks omitted)).
26                     CUERO V. CATE

breach. Santobello thus does not address the specific
question in this case—does the Due Process Clause apply to
an alleged plea agreement that is withdrawn before judgment
is entered—and therefore cannot serve as a basis for habeas
relief. See Lopez, 135 S. Ct. at 4.

    Mabry v. Johnson, 467 U.S. 504 (1984), overruled in part
by Puckett v. United States, 556 U.S. 129 (2009), also cannot
serve as a basis for habeas relief. There, the Supreme Court
stated:

        A plea bargain standing alone is without
        constitutional significance; in itself it is a
        mere executory agreement which, until
        embodied in the judgment of a court, does not
        deprive an accused of liberty or any other
        constitutionally protected interest. It is the
        ensuing guilty plea that implicates the
        Constitution. Only after respondent pleaded
        guilty was he convicted, and it is that
        conviction which gave rise to the deprivation
        of respondent’s liberty at issue here.

467 U.S. at 507–08 (emphasis added) (footnote omitted).
Mabry thus identifies two points at which due process rights
may possibly attach in this context: (1) the entry of a plea, or
(2) the entry of judgment. Notably, though, Mabry did not
actually decide the issue because the government had
withdrawn the plea agreement the defendant sought to
enforce before the defendant entered a plea pursuant to it. Id.
at 506.

    In the thirty-plus years since Mabry, the Supreme Court
has not addressed the Due Process Clause’s application to a
                           CUERO V. CATE                              27

pre-judgment plea agreement. As a result, the “precise
contours” of a defendant’s due process rights in the plea
agreement context “remain unclear.” White, 134 S. Ct. at
1705 (quoting Lockyer, 538 U.S. at 75–76). Therefore, at an
absolute minimum, reasonable minds could disagree about
whether the Due Process Clause covers pre-judgment plea
agreements, particularly those that have been withdrawn or
are not in effect at the time of judgment. See, e.g.,
Harrington v. Richter, 562 U.S. 86, 101 (2011) (“A state
court’s determination that a claim lacks merit precludes
habeas relief so long as ‘fairminded jurists could disagree’ on
the correctness of the state court’s decision.” (quoting
Yarborough v. Alvarado, 541 U.S. 652, 664 (2004))).

    Contrary to the majority’s indication, there is a significant
difference between the entry of a guilty plea and the entry of
judgment. Far from a perfunctory step, the entry of judgment
constitutes a significant milestone in a prosecution. Among
other possible things, the entry of judgment dramatically
reduces a defendant’s ability to withdraw his guilty plea and
exercise his constitutional right to trial. See Cal. Penal Code
§ 1018.11 In short, the entry of judgment provides a finality
that does not exist when a defendant simply offers to plead.
Until judgment is entered, the defendant may withdraw his
plea or the trial judge may withdraw approval. This
distinction further confirms the reasonableness of the belief
that the Due Process Clause attaches only after judgment is
entered.



 11
    The imposition of a sentence or entry of judgment has a similar effect
in other states within the Ninth Circuit. See, e.g., Alaska R. Crim. P.
11(e); Haw. R. Penal P. 32(d); Idaho Crim. R. 33(c); Nev. Rev. Stat. Ann.
§ 176.165; Or. Rev. Stat. Ann. § 135.365.
28                     CUERO V. CATE

    Under California law, “[i]n a criminal case, judgment is
rendered when the trial court orally pronounces sentence.”
People v. Karaman, 4 Cal. 4th 335, 344 n.9 (1992); accord
People v. Mendoza, 171 Cal. App. 4th 1142, 1150 (2009).
Therefore, while a guilty plea is certainly a stop along the
path to a judgment, it is not the final destination, as it does
not include a sentence pronouncement. See, e.g., Cal. Penal
Code § 1191 (stating that, “in a felony case, after a plea, . . .
the court shall appoint a time for pronouncing judgment”).
Here, it is undisputed that, at the time the People sought and
received permission to amend its complaint, no sentence had
been announced, and, thus, no judgment had been entered.
As a result, even if there was an initial plea agreement and the
People’s amendment violated it, a reasonable judge could
find that the state courts here did not act contrary to, or
unreasonably apply, clearly established federal law by
allowing the amendment because no Supreme Court case has
applied the Due Process Clause to a situation like the one
presented here.

    The fact that the Superior Court or California Court of
Appeal might have extended the Due Process Clause to cover
Cuero’s alleged initial plea agreement does not mean that
their failure to do so amounts to an unreasonable application
of federal law. See, e.g., White, 134 S. Ct. at 1706 (stating
that AEDPA “does not require state courts to extend [the
Supreme Court’s] precedent or license federal courts to treat
the failure to do so as error”). Simply put, Supreme Court
precedent does not “squarely establish[]” that the Due Process
Clause applies to pre-judgment plea agreements. Id.
Therefore, it is not “so obvious that a clearly established rule
applies to [this case] that there could be no fairminded
disagreement on the question,” as is needed for relief under
AEDPA. Id. at 1706–07 (internal quotation marks omitted).
                            CUERO V. CATE                                29

         2. The People’s post-plea, pre-judgment
            amendment to the criminal complaint did not
            violate the Due Process Clause.

    Assuming, arguendo, that there was an initial plea
agreement and that the Due Process Clause applied to it, there
is no due process violation. “[T]he construction of [a] plea
agreement and the concomitant obligations flowing therefrom
are, within broad bounds of reasonableness, matters of state
law.” Ricketts v. Adamson, 483 U.S. 1, 5 n.3 (1987). To
reiterate, California Penal Code section 969.5(a) states, in
relevant part:

         Whenever it shall be discovered that a
         pending complaint to which a plea of guilty
         has been made under Section 859a does not
         charge all prior felonies of which the
         defendant has been convicted either in this
         state or elsewhere, the complaint may be
         forthwith amended to charge the prior
         conviction or convictions and the amendments
         may and shall be made upon order of the
         court.12


  12
     In the last sentence of footnote 12, the majority states that, “[i]n any
event, the state did charge ‘all prior felonies of which [Cuero] ha[d] been
convicted’ in the original complaint—it simply did not charge Cuero’s
felony assault conviction as a strike.” Cuero, 827 F.3d at 889 n.12
(alterations in original). Presumably, this statement was intended to imply
that section 969.5 is not applicable in this case. There is a good reason the
majority buried this statement in a footnote—it has no support. Nothing
in existing case law suggests that section 969.5 does not apply to a strike,
which is, after all, a felony. Further, the California Court of Appeal has
affirmed amendments to add strikes under California Penal Code section
969a, which employs the same “does not charge all prior felonies of which
30                      CUERO V. CATE

Additionally, California Penal Code section 1009 declares
that the trial court “may order or permit an amendment of an
indictment, accusation or information, or the filing of an
amended complaint, for any defect or insufficiency, at any
stage of the proceedings.” Also, California Penal Code
section 1192.5 provides that, following a defendant’s guilty
plea, a trial court retains the ability to “withdraw its approval
[of the plea] in light of further consideration of the matter.”
Prior to pleading, a defendant is made aware of this ability.
See Cal. Penal Code § 1192.5.

    No California state court has held that sections 969.5,
1009, and 1192.5 are inapplicable in cases where a defendant
pleads pursuant to a plea agreement reached with the People.
See People v. Lettice, 221 Cal. App. 4th 139, 150 n.12 (2013)
(“Neither the [People v. Valladoli, 13 Cal. 4th 590 (1996),]
court, nor any other court of which we are aware, has
considered whether the People may file an amended
information after having entered into a plea agreement to
resolve the case.”). Therefore, based on the sections’ plain
language, a complaint may be amended post plea if the
People seek and receive approval from the trial court to do so.
Cf. People v. Superior Court (Alvarado), 207 Cal. App. 3d
464, 478 (1989) (noting that trial courts have the discretion to
amend a complaint to “allege a prior felony conviction after
a guilty plea has been entered by the accused [under section
969.5]”).

   Here, California’s amendment process was followed: the
People filed a motion to amend, the Superior Court held a


the defendant has been convicted” language. See, e.g., People v.
Sandoval, 140 Cal. App. 4th 111, 132–34 (2006). Thus, section 969.5
clearly applies here.
                          CUERO V. CATE                             31

hearing on the motion, and, after determining that the
requested amendment would not unfairly prejudice Cuero’s
substantial rights, the Superior Court granted the People’s
request and an amended complaint was filed. Furthermore,
the Superior Court allowed Cuero to withdraw his initial plea,
which was purportedly based on an earlier plea agreement.
As a result, the People’s amendment is consistent with state
law and did not violate the Due Process Clause.

     Recognizing that California criminal procedure law
cannot get them to where they want to go, the majority shifts
its focus to California contract law. See Cuero, 827 F.3d at
885–91. However, the majority’s reliance on this body of law
is misplaced for two reasons: first, the Supreme Court has
never construed the phrase “matters of state law” to mean just
“matters of state contract law”; and second, even if it had, in
this case, the Superior Court’s approval of the People’s
request to amend is not clearly inconsistent with that body of
law.13

             i. The Supreme Court has never said that
                “matters of state law” means “matters of
                state contract law,” thus, the Superior
                Court was not bound to apply woodenly
                California contract law.

   The majority takes the Superior Court to task for not
explicitly discussing the interplay between the California
Penal Code and California contract law. Id. at 889–90. But
why would it? Cuero did not raise any arguments under


  13
     In addition, federal habeas corpus jurisdiction does not extend to
alleged violations of state law. See, e.g., Guzman v. Morris, 644 F.2d
1295, 1297 (9th Cir. 1981); 28 U.S.C. § 2254(a).
32                     CUERO V. CATE

California contract law and neither the Supreme Court nor the
California appellate courts have required its consideration. It
is true that a number of cases have stated that California
contract law generally applies to plea agreements. See id. at
888 (collecting cases). “Generally speaking,” though, has no
place in the AEDPA lexicon. See, e.g., Lopez, 135 S. Ct. at
4 (“We have before cautioned the lower courts—and the
Ninth Circuit in particular—against ‘framing our precedents
at such a high level of generality.’” (quoting Neveda v.
Jackson, 133 S. Ct. 1990, 1994 (2013) (per curiam))). The
precedent relied upon under AEDPA must address “the
specific question presented by this case,” id., which here is:
does state contract law eliminate a prosecutor’s statutory
ability to amend a criminal complaint after a defendant has
allegedly pleaded pursuant to a plea agreement, but before
judgment has been entered. No Supreme Court or California
appellate court precedent answers this question.

    Undeterred, the majority turns to our own precedent,
specifically, Davis v. Woodford, 446 F.3d 957 (9th Cir.
2006), and Buckley v. Terhune, 441 F.3d 688 (9th Cir. 2006)
(en banc). See Cuero, 827 F.3d at 888–89. But Davis and
Buckley were decided after the Superior Court approved the
People’s amendment and are not Supreme Court opinions.
As the Supreme Court has made clear, “[c]ircuit precedent
cannot ‘refine or sharpen a general principle of Supreme
Court jurisprudence into a specific legal rule that [the
Supreme] Court has not announced.’” Lopez, 135 S. Ct. at 4
(quoting Marshall v. Rodgers, 133 S. Ct. 1446, 1450 (2013)
(per curiam)). Thus, the Superior Court was not bound to
apply woodenly state contract law, but rather, as Ricketts
instructs, could consider any relevant state law. Ricketts, 483
U.S. at 5 n.3.
                            CUERO V. CATE                               33

    The Superior Court’s approval of the People’s request to
amend is consistent with state law. First, the language in
sections 969.5, 1009, and 1192.5 is broad and neither the
California Supreme Court nor the California Court of Appeal
has narrowed it. Second, existing California law evinces a
strong desire that repeat felony offenders receive “longer
prison sentences and greater punishment.” Cal. Penal Code
§ 667(b). Third, California law strongly disfavors
prosecutors dismissing or not charging all of a defendant’s
strikes, allowing for such action to occur only when it is “in
the furtherance of justice” or when there is insufficient
evidence to prove the strike. See Cal. Penal Code
§ 667(f)(1).14

    In light of sections 969.5, 1009, and 1192.5, California
contract law is not controlling. Again, no California case has
ever held that state contract law limits the application of
sections 969.5, 1009, and 1192.5. Furthermore, to the extent
sections 969.5, 1009, and 1192.5 are inconsistent with state
contract law in allowing the People to amend the complaint,
those statutory provisions should govern because they speak
more directly to the situation faced by the Superior Court.
See, e.g., RadLAX Gateway Hotel, LLC v. Amalgamated
Bank, 132 S. Ct. 2065, 2071 (2012) (“It is a commonplace of
statutory construction that the specific governs the general.”


   14
      Section 667(f) specifically refers to “serious and/or violent felony
convictions.” However, as subsequent case law makes clear, a “serious
and/or violent felony conviction” under section 667(f) constitutes a strike.
See, e.g., People v. Acosta, 29 Cal. 4th 105, 111 (2002) (“Each of these
crimes is either a ‘serious felony’ . . . or a ‘violent felony’ . . . and
therefore is a strike under the Three Strikes law.”). Because the terms are
interchangeable, and for the sake of clarity, this dissental uses the word
“strike,” as opposed to the phrase “serious and/or violent felony
conviction,” when discussing section 667(f).
34                         CUERO V. CATE

(alteration in original omitted) (quoting Morales v. Trans
World Airlines, Inc., 504 U.S. 374, 384 (1992))); Morton v.
Mancari, 417 U.S. 535, 550–51 (1974) (“Where there is no
clear intention otherwise, a specific statute will not be
controlled or nullified by a general one, regardless of the
priority of enactment.”).

              ii. Even if state contract law had a role to play
                  in the analysis, a reasonable judge could
                  conclude that the People’s amendment was
                  permissible.

    Although not stated, it is clear that the majority
essentially viewed the People’s amendment as a rescission of
the alleged initial plea agreement. Under California law, a
party to a contract may rescind a contract if the party’s
consent was given by mistake.15 See Cal. Civ. Code
§ 1689(b)(1). To claim rescission, the mistaken party must
show that:

         (1) [he] made a mistake regarding a basic
         assumption upon which [he] made the
         contract; (2) the mistake has a material effect
         upon the agreed exchange of performances
         that is adverse to [him]; (3) [he] does not bear
         the risk of the mistake; and (4) the effect of


 15
    The People’s briefing did not address how its amendment is consistent
with state contract law. Nonetheless, we have an independent duty to ask
“what arguments or theories . . . could have supported[] the state court’s
decision; and then [] ask whether it is possible fairminded jurists could
disagree that those arguments or theories are inconsistent with the holding
in a prior decision of th[e] [Supreme] Court.” Harrington, 562 U.S. at
102.
                       CUERO V. CATE                         35

       the mistake is such that enforcement of the
       contract would be unconscionable.

Donovan v. RRL Corp., 26 Cal. 4th 261, 282 (2001). Here,
there is no doubt that the People would not have entered into
the alleged initial plea agreement with Cuero had it known
that a second prior conviction constituted a strike. Further, if
the People’s mistake remained uncorrected, Cuero would
have received a windfall—14 years rather than facing a
maximum of 64 years to life. Therefore, factors one and two
are clearly satisfied.

    A reasonable judge could also conclude factors three and
four were satisfied. As recently noted by the California Court
of Appeal in Amin v. Superior Court, 237 Cal. App. 4th 1392,
1405 (2015), “there is a dearth of cases in California”
regarding whether a plea agreement is rescindable due to a
prosecutor’s unilateral mistake. While the majority in Amin
concluded that the People failed to establish that factors three
and four were satisfied, see 237 Cal. App. 4th at 1400–07, the
dissent disagreed, id. at 1411–15. For purposes of Cuero’s
appeal, Amin is significant for two reasons. First, it shows
that, even as of 2015, California courts had not conclusively
decided how mistake-of-fact rescission applied in the plea
agreement context. Second, the disagreement between the
majority and dissent demonstrates that reasonable judges
could disagree about the issue, even years after the conclusion
of Cuero’s state court proceedings. Thus, the state courts
here could have reasonably found that the alleged initial plea
agreement could be rescinded.

    Despite the majority’s intimation to the contrary, the
alleged rescission in this case did not occur past the point of
no return. The People could still be disgorged of the benefit
36                      CUERO V. CATE

received—Cuero’s waiver of his right to trial—and the
proverbial “coin” Cuero had paid could be refunded to him in
full. Stated differently, the initial plea could be unwound and
the parties returned to the exact same position they occupied
prior to the plea being entered, as the prosecutor had argued
at the hearing on the motion to amend. Thus, this case is
unlike those where a defendant, pursuant to a plea agreement,
testifies against another at trial or cooperates with law
enforcement in some meaningful way. As a result, a
reasonable judge could conclude that the alleged rescission
here was permissible. See, e.g., NMSBPCSLDHB v. County
of Fresno, 152 Cal. App. 4th 954, 959–60 (2007) (stating that
rescission “requir[es] each [party] to return whatever
consideration has been received” (quoting Imperial Cas. &
Indem. Co. v. Sogomonian, 198 Cal. App. 3d 169, 184
(1988))).

        3. Even if Cuero’s due process rights were
           violated, Supreme Court precedent does not
           require specific performance.

     The majority concludes that the “Superior Court also
unreasonably applied clearly established federal law by
failing to order specific performance of Cuero’s [initial] plea
agreement.” Cuero, 827 F.3d at 890. Again, this conclusion
finds no support in existing Supreme Court precedent. In
fact, it is clearly inconsistent with the Supreme Court’s
declaration that the decision of whether to grant a defendant
specific performance or to allow him to withdraw from his
plea is a decision best left to the “discretion of the state court,
which is in a better position to decide [what relief is
warranted].” Santobello, 404 U.S. at 263.
                          CUERO V. CATE                               37

    In addition to being wrong on the law, the majority
ignores the fact that allowing Cuero to withdraw his plea
placed him in the exact same position he was in prior to
entering into the alleged initial plea agreement, which
distinguishes this case from those cited by the majority. See
Cuero, 827 F.3d at 890–91.16 California contract law merely
requires that the non-breaching party be made whole. Here,
pursuant to the alleged initial plea agreement, Cuero gave up
his right to trial, but he received that right back when the
Superior Court approved the People’s request to amend.

    It is true that Cuero was deprived of receiving an
unlawfully generous sentence, but this is of no moment.
California law did not clearly establish that, under these
circumstances, a defendant is entitled to re-acquire something
he should have never gotten in the first place; instead, it
indicated just the opposite. See Alvarado, 207 Cal. App. 3d
at 477 (“Although probation ineligibility is prejudicial in the
sense that Alvarado would rather it not be alleged, the
allegation here does not cause prejudice to Alvarado’s
substantial rights. In fact, the amendment merely places
Alvarado in the position he should have been in at the time of
his arraignment in municipal court had he not used an alias
and entered an immediate guilty plea under section 859a.”).
A reasonable judge might well conclude that the appropriate
remedy in this case was to allow Cuero to withdraw from his


  16
    The three cases cited by the majority in which specific performance
was ordered involved defendants who, in reliance on their plea
agreements, took actions that could not be undone. See Buckley, 441 F.3d
688 (testifying against codefendants); Brown v. Poole, 337 F.3d 1155 (9th
Cir. 2003) (serving as a model inmate during her first few years in
confinement); In re Timothy N., 216 Cal. App. 4th 725 (2013)
(successfully completing probation).
38                     CUERO V. CATE

initial plea rather than order the People to perform
specifically the alleged initial plea agreement.

    In sum, following the People’s motion to amend the
complaint, the Superior Court held a hearing, considered
Cuero’s opposition to the motion, and, exercising its
statutorily given authority, determined that the People’s
motion should be granted. Further, after making this
determination, the Superior Court afforded Cuero the
opportunity to withdraw from his plea, of which he took
advantage. Nothing in this sequence of events is inconsistent
with state law or established Supreme Court precedent. As a
result, there is no due process violation, the Superior Court
did not err, and Cuero is not entitled to habeas relief.

     B. The majority’s opinion intrudes upon the just and
        orderly administration of justice in California and
        possibly other states within the Ninth Circuit.

    “It goes without saying that preventing and dealing with
crime is much more the business of the States than it is of the
Federal Government, and that [federal courts] should not
lightly construe the Constitution so as to intrude upon the
administration of justice by the individual States.” Medina v.
California, 505 U.S. 437, 445 (1992) (citation omitted)
(quoting Patterson v. New York, 432 U.S. 197, 201 (1977)).
Accordingly, federal courts may use the Due Process Clause
to override a state’s prescribed criminal procedure only when
the procedure “offends some principle of justice so rooted in
the traditions and conscience of our people as to be ranked as
fundamental.” Id. (quoting Patterson, 432 U.S. at 202).

    Today, plea agreements play an instrumental part in our
criminal justice system. See Santobello, 404 U.S. at 261; see
                      CUERO V. CATE                        39

also Missouri v. Frye, 132 S. Ct. 1399, 1407 (2012) (“Ninety-
seven percent of federal convictions and ninety-four percent
of state convictions are the result of guilty pleas.”). The
majority appears blind to the practical implications of its
ruling. Due to speedy trial concerns, as well as others, plea
negotiations often begin immediately and a prosecutor may
have less-than-complete or unclear information. In hopes of
covering his sordid record, a defendant may use an alias or be
less than forthcoming about his criminal history. Further,
reports from the FBI, state and local law enforcement
authorities, and presentence investigators may not be
available. Cf. Thompson v. Superior Court, 91 Cal. App. 4th
144, 156 (2001) (“At the time of the preliminary hearing, the
defendant’s prior convictions may not be fully known to the
People, especially if the defendant has used one or more
aliases, or has suffered convictions in other states.”). As a
result, mistakes are bound to occur. Though we undoubtedly
want state prosecutors to follow through with agreements
they enter into, we should not impede their need to revive
those agreements upon the discovery of additional
information unless and until the Supreme Court clearly
establishes that we may do so in the specific circumstances
here. See Medina, 505 U.S. at 445; see also Mabry, 467 U.S.
at 511 (“The Due Process Clause is not a code of ethics for
prosecutors[.]”).

    The majority’s ruling substantially interferes with
California’s criminal justice system. California law requires
prosecutors to charge a defendant’s prior serious and violent
felonies, i.e., strikes. Without the safety valve created by
California Penal Code sections 969.5, 1009, and 1192.5,
prosecutors will be forced to choose between (a) pressing
ahead with imperfect information and risk potentially
violating California law and (b) refusing to negotiate until
40                     CUERO V. CATE

complete information is received, potentially freeing
dangerous individuals and taking to trial cases they otherwise
would not. While Supreme Court precedent sometimes
creates Hobson-like choices for law enforcement personnel,
it has not done so in this particular context and one should not
be foisted onto prosecutors within the Ninth Circuit.

III. CONCLUSION

    If past behavior is any indication of future behavior,
Michael Cuero is well on his way to serving a life sentence on
an installment plan. Unfortunately, each new installment
likely means that Cuero has victimized yet another person
whose life, like Jeffrey Feldman’s, will never be the same.
The true injustice here is that Cuero will not have to serve the
sentence that the Superior Court legally imposed. In failing
to follow the Supreme Court’s direction to defer to the state
court’s reasonable determination, the majority has not only
deprived Jeffrey Feldman and his family of the justice to
which they are entitled, but has also stripped California of a
tool used to ensure that criminal defendants receive sentences
that are commensurate with all of the offenses they have
committed. Such meddling by a federal court in a state’s
criminal justice process should only occur when required by
clearly established Supreme Court precedent. Because no
such precedent exists here, I respectfully dissent from our
refusal to rehear this case en banc.
