                     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
 SCOTT KERNAN,
             Respondent-Appellee.
                                                      ORDER

                     Filed January 28, 2019

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



                          SUMMARY *


                          Habeas Corpus

    The panel denied a petition for panel rehearing in a case
in which, on remand from the Supreme Court, the panel
affirmed the judgment of the district court in light of Kernan
v. Cuero, 138 S. Ct. 4 (2017).

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

    Dissenting from the denial of the petition for panel
rehearing, Judge Wardlaw wrote that she would have
reversed in part and remanded with instructions to remand to
the state court for any further consideration it deems
necessary to remediate the violation of Cuero’s due process
rights.


                          ORDER

    Both Judges O’Scannlain and Silverman voted to deny
Appellant’s petition for panel rehearing. Judge Wardlaw
votes to grant the petition for panel rehearing. Accordingly,
Appellant’s petition for panel rehearing is DENIED.



WARDLAW, Circuit Judge, dissenting:

    With respect, I would grant Cuero’s petition for panel
rehearing. I agree with Cuero’s reading of the Supreme
Court’s opinion in Kernan v. Cuero, 138 S. Ct. 4 (2017),
reh’g denied, 138 S. Ct. 724 (2018). On remand, I would
have entered an order that reversed in part and remanded
with instructions to remand to the state court for any further
consideration it deems necessary to remediate the violation
of Cuero’s due process rights. On the assumption that the
parties likely will once again find themselves in state court,
I write to clarify what the Supreme Court did and didn’t hold
in Kernan.

    1. First, the Supreme Court left intact our panel holding
that the “State violated the Constitution when it moved to
amend the complaint.” Id. at 8. In Cuero v. Cate, 827 F.3d
879 (9th Cir. 2016), we found that Cuero entered a binding,
judicially approved plea agreement that contained a charge
                     CUERO V. KERNAN                         3

bargain that resulted in an agreed maximum sentence of
14 years and 4 months. We held that the State breached this
agreement in violation of Cuero’s clearly established
constitutional due process rights by seeking to amend the
criminal complaint after the binding plea agreement was
signed and judicially approved, resulting in an indeterminate
64 years to life sentence. The Supreme Court did not disturb
this holding and it remains the law of the case.

    2. The Supreme Court reversed only our holding that
specific performance of the plea agreement, i.e. an
imposition of a 14 year, 4 month sentence as originally
bargained, was the required remedy. It did so because it was
“unable to find in Supreme Court precedent that ‘clearly
established federal law’ demanding specific performance as
a remedy.” Kernan, 138 S. Ct. at 8. As the Court wrote,
“We decide no other issue in this case.” Id. at 9.

     3. The Supreme Court rejected Cuero’s mootness
argument based on his having been resentenced, stating
“[r]eversal would simply ‘und[o] what the habeas corpus
court did,’ namely, permit the state courts to determine in the
first instance the lawfulness of a longer sentence not yet
served.” Id. at 7 (citation omitted). The Court then
“remand[ed] the case for further proceedings consistent with
this opinion.” Id. at 9.

    Consistency with the Kernan Supreme Court decision
requires that any resentencing that may occur must take into
account the State’s breach of Cuero’s plea agreement in
violation of Cuero’s due process rights. The state court
remains free to remedy this breach by requiring specific
performance of the original plea agreement. Kernan stands
merely for the proposition that the state court is not required
to do so by clearly established Supreme Court law.
