                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.                 OPINION


     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 June 30, 2016

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

              Opinion by Judge Wardlaw;
             Dissent by Judge O’Scannlain
2                         CUERO V. CATE

                           SUMMARY*


                          Habeas Corpus

    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.

    The panel held that after Cuero entered a binding,
judicially-approved plea agreement guaranteeing a maximum
sentence of 14 years and 4 months in prison, and stood
convicted, the prosecution breached the plea agreement by
moving to amend the complaint to charge Cuero’s prior
assault conviction as a second strike, and the Superior Court
acted contrary to federal law, clearly established by the
Supreme Court in Santobello v. New York, 404 U.S. 257
(1971), when it permitted the amendment and refused to order
specific performance of the original plea agreement. The
panel wrote that by failing to interpret Cuero’s plea
agreement consistently with California contract law, the
Superior Court unreasonably applied federal law clearly
established by the Supreme Court in Ricketts v. Adamson, 483
U.S. 1 (1987). The panel explained that allowing Cuero to
withdraw his guilty plea, exposing Cuero to the risk of trial
and receiving an indeterminate sentence of 64 years to life,
was no remedy. The panel 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.


  *
    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

    Dissenting, Judge O’Scannlain wrote that the majority
erroneously orders federal habeas relief to a state prisoner on
the basis of a non-existent plea agreement and irrelevant state
contract law.


                         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

                               OPINION

WARDLAW, Circuit Judge:

    On December 8, 2005, Michael Daniel Cuero stood in
open court before the Honorable Charles W. Ervin, Judge of
the Superior Court in and for the County of San Diego, and
pursuant to a written plea agreement, he freely and
voluntarily pleaded guilty to one felony count of causing
bodily injury while driving under the influence and one
felony count of unlawful possession of a firearm. Cuero also
admitted a single prior strike conviction1 and four prison
priors.2 In exchange for Cuero’s waiver of his constitutional
and numerous other rights, the prosecution dismissed a
misdemeanor count, thereby guaranteeing Cuero a maximum
sentence of 14 years, 4 months in prison and 4 years of
parole, as explained both in the written plea agreement,

 1
   “California’s current three strikes law consists of two virtually identical
statutory schemes ‘designed to increase the prison terms of repeat
felons.’” Ewing v. California, 538 U.S. 11, 15 (2003) (quoting People v.
Superior Court of San Diego Cty. ex rel. Romero, 917 P.2d 628, 630 (Cal.
1996)). When Cuero was charged in 2005, the three strikes law required
that a defendant with a single qualifying conviction, i.e., a single strike,
“be sentenced to ‘twice the term otherwise provided as punishment for the
current felony conviction.’” Id. at 16 (quoting Cal. Penal Code
§§ 667(e)(1), 1170.12(c)(1)). If the defendant had two or more qualifying
convictions, the law mandated “an indeterminate term of life
imprisonment.” Id. (quoting Cal. Penal Code §§ 667(e)(2)(A),
1170.12(c)(2)(A)). See generally 3 B.E. Witkin et al., California Criminal
Law §§ 428–429 (4th ed. 2012).
    2
    California Penal Code § 667.5(b) requires a court to “impose a one-
year term for each prior separate prison term or county jail term” served
by a defendant. California courts refer to these prior terms of
incarceration as “prison priors.” Cuero admitted serving four prison
priors, resulting in the addition of four consecutive years to his sentence.
                       CUERO V. CATE                          5

Appendix A, ¶ 7a, and by Judge Ervin during the plea
colloquy. Judge Ervin then accepted Cuero’s plea and
admissions, and set sentencing for January 11, 2006. That
same day, Judge Ervin signed the Finding and Order,
Appendix A at 3, stating that “the defendant is convicted
thereby.”

    Cuero stood convicted; “nothing remain[ed] but to give
judgment and determine punishment.” Boykin v. Alabama,
395 U.S. 238, 242 (1969). Under clearly established
Supreme Court law, the plea agreement bound the
government. See Mabry v. Johnson, 467 U.S. 504, 507–08
(1984) (a defendant’s guilty plea “implicates the
Constitution,” not the “plea bargain standing alone”);
Santobello v. New York, 404 U.S. 257, 262 (1971) (“[W]hen
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.”); Boykin, 395 U.S. at 242, 244 (“[A] plea of guilty
is more than an admission of conduct; it is a conviction.”). In
Cuero’s case, the government was bound by its agreement in
open court that punishment could be no greater than 14 years,
4 months in prison. See Ricketts v. Adamson, 483 U.S. 1, 5
n.3 (1987) (“[T]he construction of [a] plea agreement and the
concomitant obligations flowing therefrom are, within broad
bounds of reasonableness, matters of state law.”); 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.”).

    Improbably, the day before the scheduled sentencing, the
state prosecutor moved to amend the criminal complaint to
allege an additional prior strike conviction, which, if allowed,
6                          CUERO V. CATE

would result in an indeterminate 64 years to life sentence
under California’s three strikes law.3 Even more improbably,
a different Superior Court judge than Judge Ervin permitted
the amendment. Not only did the prosecution breach the plea
agreement by seeking to amend the complaint after the deal
was sealed, the Superior Court judge unreasonably applied
clearly established Supreme Court authority by failing to
recognize that the “breach [was] undoubtedly a violation of
the defendant’s rights.” Puckett v. United States, 556 U.S.
129, 136 (2009) (citing Santobello, 404 U.S. at 262). That
the Superior Court allowed Cuero to withdraw his guilty plea
and enter a new plea agreement calling for an indeterminate
25 years to life sentence was no remedy here; Cuero lost the
benefit of his original bargain.

    Because the state court neither recognized nor applied
clearly established Supreme Court authority, and acted in
contravention of that authority, we reverse the judgment of
the district court denying Cuero’s habeas petition, and we
remand with instructions to issue the writ of habeas corpus.

          I. Jurisdiction and Standard of Review4

    We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and
2253. We review de novo a district court’s denial of a habeas
petition. Hurles v. Ryan, 752 F.3d 768, 777 (9th Cir. 2014).

    3
   Although the state also alleged two additional “serious felony” priors,
it was the addition of the second strike that exposed Cuero to an
indeterminate life sentence.
    4
    Cuero properly exhausted on direct and collateral review his claims
that the prosecutor breached the plea agreement in violation of his due
process rights and that he received ineffective assistance of counsel. We
do not reach the latter claim.
                        CUERO V. CATE                           7

Because Cuero filed his federal habeas petition after April 24,
1996, the Anti-Terrorism and Effective Death Penalty Act
(“AEDPA”) governs our review. Id.

    AEDPA bars relitigation of any claim adjudicated on the
merits in state court, unless the state court’s decision satisfies
the exceptions contained in 28 U.S.C. §§ 2254(d)(1) or (2).
Harrington v. Richter, 562 U.S. 86, 98 (2011). Those
exceptions authorize a grant of habeas relief where the
relevant state-court decision was (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 in the State court proceeding.” 28 U.S.C.
§§ 2254(d)(1), (2).

    “[A] state-court decision is contrary to Federal law ‘if the
state court arrives at a conclusion opposite to that reached by
th[e Supreme] Court on a question of law,’ or ‘the state court
confronts facts that are materially indistinguishable from a
relevant Supreme Court precedent and arrives at a result
opposite to [the Supreme Court].’” Murray v. Schriro,
745 F.3d 984, 997 (9th Cir. 2014) (alterations in original)
(quoting Williams v. Taylor, 529 U.S. 362, 405 (2000)). “A
state-court decision is an ‘unreasonable application’ of
Supreme Court precedent if ‘the state court identifies the
correct governing legal rule from th[e Supreme] Court’s cases
but unreasonably applies it to the facts of the particular state
prisoner’s case,’ or ‘the state court either unreasonably
extends a legal principle from [Supreme Court] precedent to
a new context where it should not apply or unreasonably
refuses to extend that principle to a new context where it
should apply.’” Id. (alterations in original) (quoting
Williams, 529 U.S. at 407).
8                         CUERO V. CATE

    We review the last reasoned decision of the state courts.
“When a state court does not explain the reason for its
decision, we ‘look through’ to the last state-court decision
that provides a reasoned explanation capable of review.” Id.
at 996 (quoting Shackleford v. Hubbard, 234 F.3d 1072, 1079
n.2 (9th Cir. 2000)). Where a reasoned state-court decision
exists, we do not “evaluate all the hypothetical reasons that
could have supported the high court’s decision.” Cannedy v.
Adams, 706 F.3d 1148, 1157 (9th Cir.), amended on denial of
reh’g by 733 F.3d 794 (9th Cir. 2013); see also id. at 1159
(“Richter does not change our practice of ‘looking through’
summary denials to the last reasoned decision—whether
those denials are on the merits or denials of discretionary
review.” (footnote omitted)); Medley v. Runnels, 506 F.3d
857, 862–63 (9th Cir. 2007) (en banc) (Judge Callahan
writing for the majority). Here, we evaluate the San Diego
Superior Court’s decision to grant the prosecution’s motion
to amend the complaint following Cuero’s entry of his
original guilty plea and his conviction based on that plea.5

                           II. Discussion

A. Cuero entered a binding, judicially approved plea
   agreement and stood convicted.

    Under clearly established Supreme Court law, Cuero
stood convicted and his plea agreement became binding the
moment the first Superior Court judge accepted his guilty


    5
    On direct appeal, Cuero’s appointed counsel filed a brief pursuant to
People v. Wende, 600 P.2d 1071 (Cal. 1979) (en banc), and Anders v.
California, 386 U.S. 738 (1967). The California Court of Appeal affirmed
Cuero’s conviction and sentence in an unpublished, unreasoned opinion,
finding “no reasonably arguable appellate issue.”
                           CUERO V. CATE                                9

plea. “A plea of guilty is more than a confession which
admits that the accused did various acts; it is itself a
conviction.” Boykin, 395 U.S. at 242. And “[w]hen 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.”
Santobello, 404 U.S. at 262 (emphasis added); see also Peter
Westen & David Westin, A Constitutional Law of Remedies
for Broken Plea Bargains, 60 Calif. L. Rev. 471, 474 (1978)
(citing the language quoted above as the “undisputed
holding” of Santobello). A defendant’s guilty plea thus
“implicates the Constitution,” transforming the plea bargain
from a “mere executory agreement” into a binding contract.
Mabry, 467 U.S. at 507–08.6 In other words, 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.” Buckley, 441 F.3d at 694 (citing
Santobello, 404 U.S. at 261–62); see also Doe v. Harris,
640 F.3d 972, 975 (9th Cir. 2011); Brown v. Poole, 337 F.3d
1155, 1159 (9th Cir. 2003).




    6
       Although Mabry clarified the constitutional significance of a
consummated plea agreement, insofar as Cuero’s case is concerned, it did
nothing more. As the dissent points out, Mabry involved a “prosecutor’s
withdrawn offer.” 467 U.S. at 510 (emphasis added). In Mabry, the
prosecution had offered the defendant more lenient sentencing terms in
exchange for his guilty plea and, when the defendant attempted to accept
the offer, the government withdrew it. Id. at 505–06. The defendant then
opted to stand trial and, following a mistrial, pleaded guilty on entirely
different terms. Id. at 506. Unsurprisingly, the Mabry court refused to
enforce the prosecutor’s original, withdrawn offer—the defendant’s guilty
plea “was in no sense induced by the prosecutor’s withdrawn offer,” id.
at 510, and that “executory agreement” was not made binding through an
“ensuing guilty plea,” id. at 507.
10                     CUERO V. CATE

    In Buckley v. Terhune, our court, sitting en banc, affirmed
a grant of habeas relief pursuant to 28 U.S.C. § 2254(d)(1)
that ordered specific enforcement of the terms of a plea
agreement. 441 F.3d at 691. There, the state prosecutor
offered a plea bargain: Buckley would provide cooperating
testimony against his codefendants in return for which the
prosecutor would dismiss his robbery and burglary charges
and reduce the first degree murder charge against him to
second degree. Id. Attached to the offer was a felony
disposition statement that stated, under “Consequences of the
Plea,” that Buckley could be sentenced to a “maximum
possible term of 15 years.” Id. Buckley signed the plea
agreement, initialing the maximum sentence line on
December 17, 1987. Id. At some point before the change of
plea hearing on January 4, 1988, the state prosecutor, on his
own and without Buckley’s knowledge, added a handwritten
paragraph to the disposition statement stating that the
sentence would be a “maximum term of 15 years to life.” Id.
at 691–92. Just as in Cuero’s case, during the guilty plea
colloquy pursuant to the plea bargain, the state court told
Buckley that he could be sentenced to state prison for a
“maximum possible term of fifteen years.” Id. at 692.
Following the trial of his codefendants in which Buckley
“complied with the terms of the negotiated disposition,”
according to the state prosecutor, the court sentenced Buckley
to a prison term of 15 years to life. Id. at 693. And, again,
just as in Cuero’s case, the last reasoned state court decision
failed to “interpret Buckley’s plea agreement according to
California contract law.” Id. at 691. We affirmed the district
court’s grant of habeas relief because the state court’s failure
was “contrary to clearly established Supreme Court law as set
forth in Santobello v. New York . . . and Ricketts v. Adamson,”
satisfying § 2254(d)(1)’s “contrary to” exception. Id.
                       CUERO V. CATE                        11

    While the state prosecutor here did not act so
underhandedly as Buckley’s, the same result obtained—
Cuero performed his part of the bargain only to have the state
renege on its. The state originally charged Cuero with two
felonies and a misdemeanor. It later amended the complaint
to add a single prior strike conviction and four prison priors.
Next, the parties entered into a written plea agreement
through which the state induced Cuero to cede his
constitutional and other rights and plead guilty in exchange
for the state’s promise to drop the misdemeanor charge,
thereby guaranteeing Cuero a “maximum [sentencing]
exposure of 14 years, 4 months in state prison, 4 years on
parole and a $10,000 fine.” On December 8, 2005, the parties
signed the plea agreement, which is on page three of the
dissent’s Appendix A, and which, as in Buckley, under
“Consequences of the Plea” set forth Cuero’s state-
guaranteed maximum sentencing exposure. That same day,
Judge Ervin held a change of plea hearing. The state
prosecutor, Kristian Trocha, Cuero, and Cuero’s counsel,
Alberto Tamayo, stood before Judge Ervin and expressed
their mutual intent to “settle this case today.” The court
received the charge sheet—i.e., the amended complaint,
Appendix A.1, attached to the majority opinion—and asked
counsel to what Cuero would be pleading. Cuero’s counsel,
referring to the charge sheet, stated that Cuero would be
pleading to “the sheet without the Count 3 misdemeanor.”
Judge Ervin reiterated, “He’s going to plead guilty to
everything on the charging document with the exception of
Count 3.” The judge next indicated that “It is a sentence for
the Court, no deals with the people,” meaning that the plea
agreement was as to the charge and not to the specific
12                          CUERO V. CATE

sentence.7 Both the prosecutor and defense counsel assented.8



     7
      Two types of plea bargains exist: charge bargains and sentence
bargains. 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. 2015).
Sentence bargains “involve[] an agreement whereby the defendant pleads
‘on the nose,’ that is, to the original charge, in exchange for some kind of
promise from the prosecutor concerning the sentence to be imposed.” Id.;
see also United States v. Miller, 722 F.2d 562, 563 (9th Cir. 1983)
(explaining that charge bargains are “predicated upon the dropping of
counts,” whereas sentence bargains are “predicated either upon the
[prosecutor’s] recommendation of or agreement not to oppose a particular
sentence . . . , or upon a guarantee of a particular sentence”). “Sentence
bargaining carries with it a somewhat greater risk than charge bargaining.
When a defendant bargains for a plea to a lesser offense, he receives his
bargain the instant he enters his guilty plea, but when he pleads guilty in
exchange for the prosecutor’s promise to seek a certain sentence there
remains some possibility that . . . the trial judge will not follow the
prosecutor’s recommendations.” LaFave, supra, at § 21.1(a). This case
involves only charge bargaining.

     Federal Rule of Criminal Procedure 11(c)(1) also reflects the
distinction between a charge bargain and a sentence bargain, and
prescribes procedures for each:

         [T]he plea agreement may specify that an attorney for
         the government will:

         (A) not bring, or will move to dismiss, other charges;

         (B) recommend, or agree not to oppose the defendant’s
         request, that a particular sentence or sentencing range
         is appropriate or that a particular provision of the
         Sentencing Guidelines, or policy statement, or
         sentencing factor does or does not apply (such a
         recommendation or request does not bind the court); or
                           CUERO V. CATE                              13

Cuero was then placed under oath and asked by Judge Ervin
“Did you hear the plea agreement that I described?”
Following Cuero’s affirmative response, the court asked, “Is
it your full and complete understanding to settle this case
today?” The court went on to review the forms, the dissent’s
Appendix A, with Cuero, asking Cuero again to inform him
that he “wish[ed] to accept the agreement to this case, written
on the blue form,” and to confirm Cuero “sign[ed] his name,”
“place[d] his initials in these boxes,” and “put his thumb print
on it.” Again, following Cuero’s affirmative responses, the
court stated, “In addition to the plea agreement, the document
[Appendix A to the dissent] sets forth and describes
constitutional rights that you enjoy.” See Appendix A at 1.
The court next informed Cuero that 14 years, 4 months in
prison was the “maximum punishment [he] could receive,”
and Cuero pleaded guilty to the two felonies and admitted his
single strike and four prison priors. The court accepted the


         (C) agree that a specific sentence or sentencing range is
         the appropriate disposition of the case, or that a
         particular provision of the Sentencing Guidelines, or
         policy statement, or sentencing factor does or does not
         apply (such a recommendation or request binds the
         court once the court accepts the plea agreement).

Fed. R. Crim. P. 11(c)(1)(A)–(C).

    Thus, there were no agreements about Cuero’s sentence, as indicated
by Appendix A to the dissent; rather, because the state agreed to drop the
misdemeanor charge, Cuero’s sentence was limited to 14 years and 4
months.
  8
     The dissent misleadingly mistakes the “no deals with the people”
language to mean that there was no plea agreement, and, ironically, holds
up the document setting forth the plea agreement, Appendix A, to support
its view.
14                         CUERO V. CATE

plea. The court then turned to the prosecutor, Mr. Trocha,
and asked, “People’s motion as to the misdemeanor count,
which is Count 3?” Mr. Trocha stated, “Dismiss in light of
the plea.” The court then granted the state’s motion “in light
of the plea,” accepted “the defendant’s plea and admissions,”
and concluded that “the defendant is convicted thereby.”
Nothing more was required to consummate Cuero’s plea
agreement; it “was accepted and final . . . at the moment that
the judge made the requisite factual findings and accepted the
plea.” Brown, 337 F.3d at 1159. And the prosecution was
bound by the agreement’s terms, which it acknowledged by
immediately moving to dismiss the misdemeanor charge.9


   9
     Absurdly, the dissent attaches the very document that the court and
both state and defense counsel identified as the written plea agreement as
purported proof that there was no agreement. The dissent’s analysis reads
like the caption “This is not a pipe” below Magritte’s famous painting of
a pipe. Even more mystifying, the dissent disregards the entire plea
colloquy, transcript of proceedings, and the written plea agreement itself
to reach this convenient conclusion. The dissent stands alone in its
erroneous conclusion—not even the state disputed the existence of the
plea agreement, until oral argument, and it waived that argument by
failing to raise it in the answering brief. Clem v. Lomeli, 566 F.3d 1177,
1182 (9th Cir. 2009) (holding that an argument not addressed in an
answering brief is waived (citing United States v. Gamboa-Cardenas,
508 F.3d 491, 502 (9th Cir. 2007)). Throughout its briefing, the state
insists that California law allowed it to amend the complaint, even after
the plea agreement was entered and Cuero was convicted. By contrast,
Cuero argued throughout his opening brief that the state breached his
original plea agreement—and the state did not dispute the original plea
agreement’s existence anywhere in its answering brief. To the contrary,
the state acknowledged the agreement’s existence and framed the issue to
be resolved as “[w]hether amendment of the complaint after Cuero
pleaded guilty violated the plea agreement and Cuero’s right to due
process.” Indeed, the state’s brief contrasted Cuero’s “initial plea
agreement” with his “second” or “new plea agreement.” It was therefore
no wonder that members of our panel greeted the state’s argument that
                           CUERO V. CATE                               15

B. The prosecution breached the court-approved plea
   agreement by attempting to amend the complaint.

    Although the prosecution initially honored its promise to
dismiss the misdemeanor charge, it then breached the plea
agreement by moving to amend the complaint to charge
Cuero’s prior assault conviction as a second strike. The
Superior Court acted contrary to clearly established Supreme
Court law by permitting the amendment and refusing to
enforce the original plea agreement.

    “[T]he construction of [a] plea agreement and the
concomitant obligations flowing therefrom are, within broad
bounds of reasonableness, matters of state law.” Adamson,
483 U.S. at 5 n.3; see also Buckley, 397 F.3d at 1161–62
(Bea, J., dissenting) (“At the time of the state habeas
proceeding, clearly established Federal law, as determined by
the Supreme Court, made the interpretation and construction
of a plea agreement a matter of state law.” (citing Adamson,
483 U.S. at 5 n.3)), majority rev’d en banc, 441 F.3d 688 (9th
Cir. 2006); see also Puckett, 556 U.S. at 137 (“[P]lea bargains
are essentially contracts.”). “Under AEDPA, we . . . must
consider whether the [state court] decision is consistent with
a proper application of state contract law in interpreting the
plea agreement; if not, the decision was an ‘unreasonable
application of’ clearly established federal law.” Davis v.
Woodford, 446 F.3d 957, 962 (9th Cir. 2006) (citing, inter
alia, Adamson, 483 U.S. at 5 n.3). In Buckley, we noted that
as of 1999, when the state court summarily denied Buckley’s
habeas petition, the obligation to construe plea agreements
according to state contract law “had been clearly established


there was no plea agreement, made for the first time at oral argument, with
incredulity.
16                         CUERO V. CATE

federal law for more than a decade.” 441 F.3d at 694–95
(quoting Adamson, 483 U.S. at 6 n.3).10

    Under California law, “[a] plea agreement is, in essence,
a contract between the defendant and the prosecutor to which
the court consents to be bound.” People v. Segura, 188 P.3d
649, 656 (Cal. 2008) (quoting People v. Ames, 261 Cal. Rptr.
911, 913 (Ct. App. 1989)). Thus, “[a] negotiated plea
agreement . . . is interpreted according to general contract
principles.” People v. Shelton, 125 P.3d 290, 294 (Cal.
2006). Under California law, “[a] contract must be so
interpreted as to give effect to the mutual intention of the
parties as it existed at the time of contracting.” Cal. Civ.
Code § 1636. A contract’s “clear and explicit” language
governs its interpretation. Id. § 1638. Moreover, “[a]lthough
a plea agreement does not divest the court of its inherent
sentencing discretion, ‘a judge who has accepted a plea
bargain is bound to impose a sentence within the limits of that
bargain.’” Segura, 188 P.3d at 656 (quoting Ames, 261 Cal.
Rptr. at 913).




  10
     The dissent argues that Buckley’s reasoning was undermined to the
point of irreconcilability by the Supreme Court’s intervening opinions in
Wilson v. Concorran, 562 U.S. 1 (2010) (per curiam), and Swarthout v.
Cooke, 562 U.S. 216 (2011) (per curiam), freeing our three-judge panel to
entirely disregard the en banc Buckley decision. The dissent is incorrect.
Wilson and Swarthout each reversed an intermediate appellate decision
based on perceived errors of state, rather than federal, law in the areas of
statutory aggravation and parole, respectively. They do not speak to the
situation where, as here, the Supreme Court has clearly held that the
federal constitutional due process right is itself defined by reference to
principles of state law. Buckley, 441 F.3d at 695 (citing Adamson,
483 U.S. at 6 n.3).
                           CUERO V. CATE                               17

    The terms of Cuero’s plea agreement were “clear and
explicit”: Cuero promised to plead guilty to two felonies, a
prior strike, and four prison priors; in exchange, the state
promised to drop the misdemeanor charge. By seeking to
amend the charges in the complaint, the prosecution denied
Cuero the benefit of his bargain: a maximum sentence of 14
years and 4 months. And, as a result of the amendment, the
Superior Court ultimately imposed an indeterminate life
sentence well beyond the limits of the plea agreement.11

    Moreover, the agreement said nothing about altering the
foundational assumption on which the bargain was
struck—namely, the set of charges alleged in the criminal
complaint. See People v. Walker, 819 P.2d 861, 867 (Cal.
1991) overruled on other grounds by People v. Villalobos,
277 P.3d 179 (Cal. 2012) (“When a guilty plea is entered in
exchange for specified benefits such as the dismissal of other
counts or an agreed maximum punishment, both parties,
including the state, must abide by the terms of the
agreement.”). Such an implied term would render the
agreement illusory by providing the state unfettered license
to terminate it. See Sateriale v. R.J. Reynolds Tobacco Co.,
697 F.3d 777, 791 (9th Cir. 2012) (“[A]n enforceable
termination clause that gives a promisor an unrestricted
power to terminate a contract at any time, without notice,


  11
     The state argues that its conduct was appropriate because California
Penal Code § 1192.5 allows a state court to, among other things,
“withdraw its approval [of a plea] in the light of further consideration of
the matter.” But that is not what happened here. Rather, the prosecution
sought to renege on its court-approved promise to Cuero. The result:
Cuero received a sentence far greater than that specified in the court-
approved plea agreement. Section 1192.5 actually prohibits what took
place here. That section disallows the imposition of “a punishment more
severe than that specified in the plea.”
18                         CUERO V. CATE

renders the promise illusory and unenforceable, at least so
long as the purported contract remains wholly executory.”).
This outcome is inconsistent with California contract law,
which prefers an “interpretation which gives effect” to a
contract over one that would render it void. Cal. Civ. Code
§ 3541.12

    As in Buckley, where we noted that the state court’s
decision denying habeas neither mentioned state contract law
nor referred to the terms of the plea agreement, nothing in the
second Superior Court judge’s decision permitting the state
prosecutor’s amendment here suggests that it understood it
was dealing with a binding plea agreement, let alone that it
was constitutionally obligated to construe the agreement in
accordance with state contract law. See Buckley, 441 F.3d at
696. Tellingly, the Superior Court permitted the amendment

     12
      The state argues that our construction of the plea agreement is
foreclosed by California Penal Code § 969.5, which permits amendment
of a complaint after a defendant pleads guilty if the complaint “does not
charge all prior felonies of which the defendant has been convicted.” But
§ 969.5 is irrelevant to the interpretation of a court-approved plea
agreement under state contract principles. 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.”
Witkin, supra at § 382 (emphasis added); see also People v. Rhoden,
89 Cal. Rptr. 2d 819, 824–25 (Ct. App. 1999), as modified on denial of
reh’g (Nov. 23, 1999). Once a defendant enters a guilty plea pursuant to
a plea agreement, the state is bound by the agreement and any attempt by
the state to withdraw—through a motion to amend the complaint pursuant
to § 969.5 or otherwise—constitutes a breach. Simply put, that § 969.5
provides a discretionary vehicle for post-plea amendment of a complaint
does not mean that the prosecutor can amend the complaint after the court
has approved a plea agreement and signed an order of conviction. In 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 V. CATE                               19

in reliance on two state cases: People v. Superior Court
(Alvarado), 255 Cal. Rptr. 46 (Ct. App. 1989), and People v.
Jackson, 48 Cal. Rptr. 2d 838 (Ct. App.), review granted and
opinion superseded, 914 P.2d 831 (Cal. 1996). Although
both cases address the propriety of permitting amendment of
a complaint after a defendant enters a guilty plea, neither
addresses the propriety of such amendment after a defendant
enters a guilty plea induced by a prosecutorial promise—i.e.,
pursuant to a plea bargain—and it has been approved by the
court.13 See Jackson, 48 Cal. Rptr. 2d at 840 (“[T]he court
took Jackson’s plea to the face of the complaint.”); Alvarado,
207 Cal. App. 3d at 471 (noting that the transcript of the plea
colloquy “does not indicate any plea bargain”). In other
words, neither Alvarado nor Jackson discusses the scenario
present here, where the court-approved guilty plea was
entered pursuant to a written plea agreement. Indeed, neither
case contains so much as a hint that the court was applying
California contract law. Thus, by failing to interpret Cuero’s
plea agreement consistently with California contract law, the
Superior Court unreasonably applied federal law clearly
established by the Supreme Court in Adamson nearly thirty
years ago.




 13
    In granting the state’s motion to amend, the Superior Court reasoned
that Cuero’s “substantial rights [would not be] prejudiced by the mere fact
that [his] potential punishment may have been increased due to the
amendment,” and that Cuero would “be in the same situation as he would
have been prior to entry of the plea.” The court borrowed this (inapposite)
language almost verbatim from Jackson and Alvarado. See Jackson,
48 Cal. Rptr. 2d at 844 (relying on Alvarado).
20                         CUERO V. CATE

C. Allowing Cuero to withdraw his guilty plea was no
   remedy at all.

    The Superior Court also unreasonably applied clearly
established federal law by failing to order specific
performance of Cuero’s plea agreement. A state court must
supply a remedy for a breached plea agreement that comports
with state contract law. See Puckett, 556 U.S. at 137;
Adamson, 483 U.S. at 5 n.3; Davis, 446 F.3d at 962. Under
California law, the remedy for breach must “repair the harm
caused by the breach.” People v. Toscano, 20 Cal. Rptr. 3d
923, 927 (Ct. App. 2004). “‘When the breach [alleged] is a
refusal by the 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.” In re Timothy N., 157 Cal. Rptr. 3d 78, 88 (Ct. App.
2013) (alteration in original) (quoting People v. Kaanehe,
19 Cal. 3d 1, 13 (1977)). Under Buckley, which we are bound
to follow, in a situation like that here, where the state has
already received the benefit it bargained for—a plea of guilty
and a conviction—specific performance is the best remedy,
unless the defendant, whose choice it becomes, “elect[s]
instead to rescind the agreement and take his chances from
there.”14 Buckley, 441 F.3d at 699 n.11.

  14
     In this context, specific performance is necessary to maintain the
integrity and fairness of the criminal justice system. See, e.g., LaFave,
supra, at § 21.2(e) (“When the breach was a failure by the prosecutor to
carry out a promise which was fulfillable, then certainly the defendant’s
request for specific performance should be honored. . . . [T]here is no
reason why a prosecutor who has failed to keep his fulfillable plea bargain
promise should be allowed to force the defendant into a withdrawal of the
plea and thus, presumably, a permanent breach of the bargain.”) (footnotes
                            CUERO V. CATE                                 21

    Moreover, that the state court permitted Cuero to
withdraw his plea did not “repair the harm” caused by the
prosecutor’s breach. To the contrary: It 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 properly been given a choice. That
Cuero was ultimately able to “bargain” for an indeterminate
25 years to life sentence does not alter the analysis; the state
could not have lawfully pursued an indeterminate life
sentence in the first place if it had not been allowed to breach
the plea agreement. Again, Cuero had performed his part of
the agreement by pleading guilty to the two felony charges,
admitting a single prior strike, and conceding his four prison
priors, giving the government the bargain it sought. Because
Cuero had already performed, “fundamental fairness demands
that the state be compelled to adhere to the agreement as
well.” Brown, 337 F.3d at 1162 (citation omitted). Cuero is



omitted); State v. Tourtellotte, 564 P.2d 799, 802 (1977) (Wash. 1977) (en
banc) (“If 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[.]”). Although not
dispositive, when Santobello was decided, “a majority of the court’s
members . . . [were] on record as favoring looking to defendant’s wishes
[as to choice of remedy].”                 Dennis A. Fischer, Beyond
Santobello—Remedies for Reneged Plea Bargains, 2 U. San Fernando
Valley L. Rev. 121, 125 (1973); see also Santobello, 404 U.S. at 267
(Douglas, J., concurring) (“[A] court ought to accord a defendant’s
preference considerable, if not controlling, weight inasmuch as the
fundamental rights flouted by a prosecutor’s breach of a plea bargain are
those of the defendant, not of the State.”); id. at 268 (Marshall, J.,
dissenting) (explaining that Justice Douglas’s concurrence, coupled with
the dissenting votes, appeared to create a majority in favor of honoring the
defendant’s preferred remedy).
22                     CUERO V. CATE

therefore entitled to the benefit of his original bargain: a
maximum sentence of 14 years, 4 months in prison.

                      III. Conclusion

    The San Diego Superior Court failed to recognize that
Cuero’s entry and Judge Ervin’s acceptance of Cuero’s guilty
plea pursuant to the written plea agreement was binding on
both sides. By 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. It further violated
clearly established federal law requiring construction of the
plea agreement under state contract law. See Adamson,
483 U.S. at 5 n.3; Buckley, 441 F.3d at 697. Even worse, the
last reasoned decision of the state courts relied on two
inapposite state law cases and failed to even acknowledge,
much less apply, the well-established Supreme Court
authority that dictated the contrary result. This error had a
“substantial and injurious effect” on Cuero, who is serving an
indeterminate life sentence, the minimum term of which, 25
years, is well in excess of the 14 year, 4 month maximum
promised by the government. See Brecht v. Abrahamson,
507 U.S. 619, 637 (1993) (citation omitted). Cuero is entitled
to habeas relief.

    Accordingly, the district court’s judgment denying
Cuero’s petition for a writ of habeas corpus is reversed with
instructions to issue a conditional writ requiring the state to
resentence Petitioner in accordance with the original plea
agreement within sixty days of the issuance of the mandate.

     REVERSED and REMANDED.
$33(1',;$
                       CUERO V. CATE                        23

O’SCANNLAIN, Circuit Judge, dissenting:

    Today, the Court erroneously orders federal habeas relief
to a state prisoner on the basis of a non-existent plea
agreement and irrelevant state contract law. Because the
decision of the California Court of Appeal affirming Cuero’s
conviction was neither contrary to, nor an unreasonable
application of, Supreme Court precedent, the district court’s
denial of the writ of habeas corpus should have been
affirmed.

   I respectfully dissent.

                               I

                              A

    It is appropriate to recapitulate the relevant facts. While
driving under the influence of methamphetamine, Michael
Daniel Cuero veered off the road and crashed his car into
Jeffrey Feldman, another driver who was standing outside his
pickup truck on the side of the road. Feldman sustained
severe injuries including a ruptured spleen, brain damage, and
facial disfigurement. Cuero, a convicted felon prohibited
from possessing a firearm, had a loaded firearm with him.

    Over the next two weeks, the State filed a complaint and
then an amended complaint against Cuero. The amended
complaint charged two felonies (driving under the influence
and possession of a firearm by a felon) and one misdemeanor
(being under the influence of a controlled substance). The
State alleged that Cuero had served four prior prison terms
and that one of Cuero’s prior convictions constituted a
“strike” under California’s “three strikes law.” See Cal. Penal
24                          CUERO V. CATE

Code § 667(b)–(i).1 Cuero initially pleaded “not guilty” to
the charges in the amended complaint.

    On December 8, 2005, Cuero appeared before the
superior court to change his plea to guilty. He signed a
change of plea form, which stated that he had not been
induced to enter the plea by any promises of any kind and that
he had no deals with the State.2 After the court had accepted
Cuero’s plea on both felonies and his admissions to the
“prison priors” and prior strike, the State moved to dismiss
the misdemeanor count, and the court granted the motion. A
sentencing hearing was then scheduled.

                                     B

    According to the State, during the preparation of the
sentencing memorandum for the superior court, the probation
officer discovered that one of Cuero’s prior convictions
constituted a strike in addition to the single strike alleged in
the first amended complaint.3 Prior to the scheduled


  1
     Cuero actually had two prior strikes, but the State initially did not
realize that fact.
  2
   This form, which is the same form that the mistakenly majority calls
a written plea agreement, is reproduced in Appendix A to this dissent.
    3
      Cuero had been convicted of violating California Penal Code
§ 245(a)(1), which prohibits assault with a deadly weapon other than a
firearm. “Not all section 245(a)(1) violations constitute strikes under
California law.” Gill v. Ayers, 342 F.3d 911, 914 (9th Cir. 2003). “[T]o
qualify a section 245(a)(1) conviction as a strike, the prosecution must
establish that the defendant ‘personally inflicted great bodily injury on any
person, other than an accomplice, or personally used a firearm’ under
section 1192.7(c)(8) or that he ‘personally used a dangerous or deadly
weapon’ under section 1192.7(c)(23)” of the California Penal Code. Id.
                            CUERO V. CATE                               25

sentencing hearing, the State moved under California Penal
Code § 969.5(a) further to amend its complaint again to add
the allegation of the second strike. Cuero opposed the
motion. On February 2, 2006, the superior court granted the
motion with the condition that Cuero would be permitted to
withdraw his guilty plea, thus restoring all of his
constitutional rights. The court then accepted for filing the
second amended complaint alleging the additional strike.

    On March 27, 2006, Cuero moved to withdraw his guilty
plea entered on December 8, 2005. The court granted the
motion and set aside that plea. As part of a “negotiated guilty
plea,” the State filed a third amended complaint omitting the
felon-in-possession charge, and Cuero pleaded guilty to the
charge of driving under the influence and admitted the two
prior strikes. On April 20, 2006, the court sentenced Cuero
to a term of 25 years to life pursuant to the plea agreement
and pronounced judgment.

                                    C

    Cuero appealed to the California Court of Appeal.
Pursuant to People v. Wende, 600 P.2d 1071 (Cal. 1979), and
Anders v. California, 386 U.S. 738 (1967), Cuero’s appointed
appellate counsel filed a brief setting forth the evidence in the
superior court, presented no argument for reversal, but asked
the court of appeal to review the record for error. The brief
directed the court’s attention to two potential, but not
arguable, issues: (1) “whether the trial court abused its


(internal alterations omitted). According to the State, Cuero’s admission
of a “personal use of a deadly weapon” allegation did not appear in the
files it originally compiled in preparation for charging Cuero after the car
crash.
26                    CUERO V. CATE

discretion by permitting the prosecutor to amend the
complaint to allege additional priors after [Cuero’s] initial
guilty plea” (citing People v. Sipe, 42 Cal. Rptr. 2d 266 (Ct.
App. 1995); People v. Superior Court (Alvarado), 255 Cal.
Rptr. 46 (Ct. App. 1989)); and (2) “whether the amendment
constituted a breach of a plea agreement in violation of due
process, entitling [Cuero] to specific performance of the
original agreement” (citing People v. Walker, 819 P.2d 861
(Cal. 1991), overruled in part by People v. Villalobos,
277 P.3d 179 (Cal. 2012); People v. Mancheno, 654 P.2d 211
(Cal. 1982)). The California Court of Appeal granted Cuero
permission to file a brief on his own behalf, but he did not
respond. The court reviewed the entire record and the
possible issues raised by counsel’s Wende/Anders brief. It
concluded that they “disclosed no reasonably arguable
appellate issue” and affirmed, noting that “[c]ompetent
counsel has represented Cuero on this appeal.”

   In due course, Cuero brought this petition for habeas
corpus in federal district court, where it was properly denied
and he timely appealed.

                              II

                              A

    As a reminder, it must be observed that a state prisoner’s
federal habeas petition “shall not be granted 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
                       CUERO V. CATE                        27

           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). “This is a ‘difficult to meet’ and ‘highly
deferential standard for evaluating state-court rulings, which
demands that state-court decisions be given the benefit of the
doubt.’” Cullen v. Pinholster, 563 U.S. 170, 181 (2011)
(quoting Harrington v. Richter, 562 U.S. 86, 102 (2011);
Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam)).

    Contrary to the majority’s suggestion that the § 2254(d)
“exceptions authorize a grant of habeas relief,” Maj. Op. at 7,
these clauses prescribe conditions that are necessary, but not
sufficient, for habeas relief under AEDPA.              Other
requirements exist. Most importantly for this case, § 2254(d)
“does not repeal the command of § 2254(a) that habeas relief
may be afforded to a state prisoner ‘only on the ground’ that
his custody violates federal law.” Wilson v. Corcoran,
562 U.S. 1, 5–6 (2010) (per curiam).

    For purposes of § 2254(d)(1), “clearly established Federal
law” 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)
(citations omitted). It “includes only the holdings, as opposed
to the dicta, of [the Supreme Court’s] decisions.” Woods v.
Donald, 135 S. Ct. 1372, 1376 (2015) (per curiam) (quoting
White v. Woodall, 134 S. Ct. 1697, 1702 (2014)).
28                         CUERO V. CATE

                                    B

    A threshold problem with the opinion’s analysis is its
failure to identify the appropriate state-court decision before
us. The majority concludes that we should “look through”
the opinion of the California Court of Appeal on direct review
to the earlier reasoned decision of the San Diego Superior
Court. Maj. Op. at 8. However, the look-through doctrine
only applies “[w]here there has been one reasoned state
judgment rejecting a federal claim,” Ylst v. Nunnemaker,
501 U.S. 797, 803 (1991), and we cannot “look through”
when the federal claim at issue was not “adjudicated on the
merits” in the prior reasoned decision, see 28 U.S.C.
§ 2254(d); Casey v. Moore, 386 F.3d 896, 918 n.23 (9th Cir.
2004); Medley v. Runnels, 506 F.3d 857, 870–71 (9th Cir.
2007) (en banc) (Ikuta, J., concurring in part, dissenting in
part) (“[W]e do not ‘look through’ to a state decision which
does not address the constitutional claim.”); see also Murray
v. Schriro, 745 F.3d 984, 997 (9th Cir. 2014)4 (“[W]e ‘look
through’ to the last state-court decision that provides a
reasoned explanation capable of review.” (emphasis added));
Ortiz v. Yates, 704 F.3d 1026, 1034 (9th Cir. 2012) (“[W]e
look through state-court summary denials to the last reasoned
state-court opinion on the claim at issue.” (emphasis added)).

    Here, the superior court never did adjudicate the merits of
Cuero’s claim that the second amendment of the complaint
constituted a breach of his plea agreement in violation of due
process, entitling him to specific performance. In Cuero’s
brief in opposition to the motion to amend and in oral


 4
  I note that the majority relies on one of Murray’s statements of law that
has been undermined by a subsequent Supreme Court decision. See
Woodall, 134 S. Ct. at 1706; contra Maj. Op. at 7–8.
                           CUERO V. CATE                                29

argument on the motion, he exclusively argued that the
superior court should exercise its discretion under state law
to deny leave to amend.5 Cuero did not argue that the second
amendment of the complaint would violate due process. He
did not argue that any plea agreement prohibited the second
amendment of the complaint, nor that he was entitled to
specific performance, nor that the state court was required to
construe plea agreements in accordance with state contract
law. Indeed, Cuero argues to us that his trial counsel was
ineffective for failing to raise Cuero’s due process claim
before the superior court.

    Thus, Cuero never raised a due process claim, and the
superior court did not decide one. As a result, Cuero’s claim
that the second amendment of the complaint breached a pre-
existing plea agreement and thereby violated due process was
not adjudicated on the merits by the superior court. Such
claim was indeed adjudicated on the merits by a single state-
court decision: the opinion of the California Court of Appeal




  5
     Cuero cited only California Penal Code § 969.5(a), Alvarado, and
People v. Jackson, 48 Cal. Rptr. 2d 838 (Ct. App.), review granted and
opinion superseded, 914 P.2d 831 (Cal. 1996). I do not understand why
the majority criticizes the superior court for then addressing these sources
of law in its decision. Maj. Op. at 18–19 & n.13, 22. The majority also
suggests that it grants relief because the superior court did not
“recognize[]” or “acknowledge” (unspecified) Supreme Court precedents
in its decision. Maj. Op. at 6, 22. But a “state court need not cite or even
be aware of [the Supreme Court’s] cases under § 2254(d).” Richter,
56 U.S. at 98 (citing Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam)
(“Avoiding these pitfalls does not require citation of our cases—indeed,
it does not even require awareness of our cases, so long as neither the
reasoning nor the result of the state-court decision contradicts them.”)).
30                         CUERO V. CATE

on direct review, the only dispositive “decision” with respect
to which the petition for habeas corpus has been brought.6

                                    C

    Of course, “[w]here a state court’s decision is
unaccompanied by an explanation, the habeas petitioner’s
burden still must be met by showing there was no reasonable
basis for the state court to deny relief.” Richter, 562 U.S. at
98. In such a situation, we must ask “what arguments or
theories. . . could have supported[] the state court’s decision”
and then determine “whether it is possible fairminded jurists
could disagree that those arguments or theories are
inconsistent with the holding in a prior decision of” the
Supreme Court. Id. at 102. “Thus, when the state court does
not supply reasoning for its decision, we are instructed to
engage in an independent review of the record and ascertain
whether the state court’s decision was objectively
unreasonable. Crucially, this is not a de novo review of the
constitutional question, as even a strong case for relief does
not mean the state court’s contrary conclusion was
unreasonable.” Murray, 745 F.3d at 996–97 (internal
quotation marks and citations omitted).

    “Adherence to these principles serves important interests
of federalism and comity. AEDPA’s requirements reflect a
‘presumption that state courts know and follow the law.’”
Donald, 135 S. Ct. at 1376 (quoting Visciotti, 537 U.S. at 24).


   6
     This statement requires a slight caveat. With respect to Cuero’s
ineffective assistance of counsel claims, the relevant state-court decision
is that of the California Court of Appeal on collateral review. While the
majority does not reach the issue, I would affirm the denial of the writ
with respect to such claims.
                       CUERO V. CATE                         31

“When reviewing state criminal convictions on collateral
review, federal judges are required to afford state courts due
respect by overturning their decisions only when there could
be no reasonable dispute that they were wrong. Federal
habeas review thus exists as ‘a guard against extreme
malfunctions in the state criminal justice systems, not a
substitute for ordinary error correction through appeal.’” Id.
(quoting Richter, 562 U.S. at 102–03.).

                              III

    In order to prevail in his petition for habeas corpus, Cuero
must demonstrate (among other things) that: (1) on December
8, 2005, he had a plea agreement with terms that prohibited
amendment of the complaint; (2) such plea agreement had
constitutional significance before the entry of judgment, so
that breaching it would violate due process; and (3) rescission
of such plea agreement (withdrawal of the plea) was not a
constitutionally acceptable remedy for the breach of the plea
agreement. Contrary to the majority’s analysis, under the
Supreme Court’s holdings in existence at the time of the
California Court of Appeal’s decision, he cannot.

                               A

     The majority erroneously concludes that, when Cuero
initially pleaded guilty on December 8, 2005, he had a
“written plea agreement” in which the government
guaranteed that punishment would be no greater than 14
years, 4 months in prison. Maj. Op. at 4–5, 5, 6, 11–15 &
nn. 8–9, 19, 21–22. To the contrary, fairminded jurists could
readily conclude that Cuero’s initial guilty plea was not
induced by any agreement with the State, let alone an
agreement that the State would never amend its complaint.
32                        CUERO V. CATE

    On December 8, 2005, Cuero signed a standard change of
plea form. As completed, that document states:

         I, the defendant in the above-entitled case, in
         support of my plea of Guilty/No Contest,
         personally declare as follows: . . .

         2. I have not been induced to enter this plea
         by any promise or representation of any kind,
         except: (State any agreement with the District
         Attorney.)

             STC[7] – NO DEALS W/ PEOPLE.

Appendix A at 1 ¶ 2. Cuero’s initials appear next to the line
indicating “STC – NO DEALS W/ PEOPLE.” Id. Cuero
declared that he has “read, understood, and initialed each item
above . . . and everything on the form . . . is true and correct.”
Id. at 3 ¶ 13. In his plea colloquy that same day, Cuero
confirmed that he had read, understood, and thoroughly
reviewed with his attorney the plea form submitted, that he
had signed and initialed the document, and that he had no
questions about it.8

    What about the “14 year, 4 month maximum promised by
the government,” Maj. Op. at 22, relied upon so heavily by
the majority? Such a promise is a figment of the majority’s


  7
   Based on the judge’s statements at the plea hearing, it appears that
“STC” stands for “sentence for the court.”
 8
    Because the majority and I cannot seem to agree on the basic facts of
what was said at the plea hearing on December 8, 2005, I attach the
transcript of that hearing as Appendix B to my dissent.
                          CUERO V. CATE                              33

imagination. The only statement signed by the prosecutor on
the change of plea form was the following: “The People of
the State of California, plaintiff, by its attorney, the District
Attorney for the County of San Diego, concurs with the
defendant’s plea of Guilty/No Contest as set forth above.”
Appendix A at 3. And at the hearing prosecutor Kristian
Trocha said three words before Cuero entered his plea. Those
words were “Kristian Trocha” to identify himself in his initial
appearance, and “Yes” in the context of the following
exchange:

         THE COURT: It is a sentence for the court,
         no deals with the People. His maximum
         exposure is 14 years, 4 months in state prison,
         4 years on parole and a $10,000 fine. That’s
         the most he could receive by way of this plea;
         true, Mr. Tamayo?

         MR. TAMAYO: It is.

         THE COURT: Mr. Trocha?

         [MR. TROCHA9]: Yes.

See Appendix B at 1, 2 (emphasis added). Thus, the court
confirmed that there were “no deals with the People.” And
the prosecutor did not promise to refrain from ever doing

 9
    The transcript actually says that someone named Dan Rodriguez said
“Yes.” Appendix B at 2. The record does not indicate who Dan
Rodriguez is, so the court of appeal could easily have concluded that the
prosecutor only said his name before Cuero entered his plea. Because it
does not matter for purposes of this dissent, I assume that this was a
transcription error and that Mr. Trocha was the person who responded to
the court.
34                         CUERO V. CATE

anything, such as amending the complaint, that would result
in a longer sentence. He simply agreed, as a descriptive
matter, that 14 years, 4 months, was the maximum prison
term Cuero was facing at the time.10

    Both Cuero’s appellate counsel’s brief and the California
Court of Appeal’s decision imply that the initial plea was not
induced by a plea agreement. In his brief on appeal, Cuero’s
counsel stated that Cuero initially “pled guilty,” with no
mention of a plea agreement. In contrast, the brief states that
the second guilty plea was made “pursuant to a plea
agreement” and sets forth the terms of the charge bargain.
Similarly, the Court of Appeal refers to the initial “guilty
pleas” and the subsequent “negotiated guilty plea,” which
strongly implies that the court of appeal determined that no


     10
        The majority suggests that, in the plea hearing, the State
(1) “identified [the document in Appendix A] as the written plea
agreement,” Maj. Op. at 14–15 n.9; (2) “stood before Judge Ervin and
expressed [its] intent to ‘settle this case today,’” Maj. Op. at 11; and
(3) “assented” “that the plea agreement was as to the charge and not to the
specific sentence,” Maj. Op. at 11–12. It simply did not. See Appendix
B. Nowhere in the attached transcript will the reader find the statements
that the majority ascribes to the State. One will search in vain for any
reference by the Deputy District Attorney, or by the Deputy Public
Defender, for that matter, to a “plea agreement.”

     The majority reasonably notes that the superior court referred to a
“plea agreement,” and it reasonably speculates that a “charge bargain”
existed and that Cuero believed he would never face more than 14 years,
4 months in prison. But the record contains no promise or agreement by
the State to drop any charges or to refrain from amending the complaint.
In that regard, the majority confuses actions taken after the plea was
accepted with promises to take such actions. Trocha moved to “[d]ismiss
in light of the plea.” Appendix B at 8. But the State never indicated, in
either the change of plea form or the plea hearing, that such dismissal was
required by the terms of any agreement.
                      CUERO V. CATE                       35

plea agreement existed for the initial plea. Such
determination would not constitute an unreasonable
determination of the facts.

    Given Cuero’s express declaration that he was not
“induced to enter this plea by any promise or representation
of any kind” and that there were no deals with the People, a
fairminded jurist could readily conclude that the government
did not promise Cuero anything, let alone that it would never
amend its complaint.

                             B

    Even if there were a plea agreement with terms that
prohibited the State from amending its complaint, Cuero
would still need to show that, under the Supreme Court’s
holdings at the time of the California Court of Appeal’s
decision, a fairminded jurist could not possibly conclude
either that the plea agreement lacked constitutional
significance before the entry of judgment or that rescission
was a constitutionally acceptable remedy for a breach of the
plea agreement.

   In his briefing before our Court, Cuero contends that the
California Court of Appeal’s decision was an objectively
unreasonable application of Santobello v. New York, 404 U.S.
257 (1971). Apparently unsatisfied with the arguments that
Cuero made on his own behalf, the majority regrettably adds
some selective quotation of Mabry v. Johnson, 467 U.S. 504
(1984), and Ricketts v. Adamson, 483 U.S. 1 (1987), to
36                         CUERO V. CATE

support its grant of the writ.11 I respectfully suggest that the
Court of Appeal’s decision was neither contrary to, nor an
unreasonable application of, Santobello, Johnson, or
Adamson.

                                    1

    In Santobello, the Supreme Court addressed “whether the
State’s failure to keep a commitment concerning the sentence
recommendation on a guilty plea required a new trial.”
404 U.S. at 257–58. There, as part of a plea bargain, the
prosecution had agreed to make no recommendation as to the
sentence, and Santobello had agreed to plead guilty to a
lesser-included offense. Id. at 258. At sentencing, the
prosecutor instead recommended the maximum sentence,
which the judge imposed. Id. at 259–60. Upon certiorari, the
Court vacated and remanded for the state court to consider the
appropriate remedy for breach of the agreement. Id. at
262–63.

    As part of its reasoning, the Court indeed made the broad
statement upon which the majority relies: “[W]hen 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.”
Id. at 262.

 11
    The majority’s opinion, like much of our circuit precedent, vacillates
between conclusions under the “contrary to” and “unreasonable
application of” clauses of § 2254(d)(1). Maj. Op. at 10, 15 (“contrary
to”); Maj. Op. at 15, 19 (“unreasonable application of”). We should be
more precise. The “‘contrary to’ and ‘unreasonable application of’
clauses in § 2254(d)(1) are distinct and have separate meanings.” Moses
v. Payne, 555 F.3d 742, 751 (9th Cir. 2009) (citing Andrade, 538 U.S. at
73–75).
                          CUERO V. CATE                              37

    However, this general, isolated statement does not, by
itself, constitute the entire holding of Santobello.12 With
respect to the proper remedy for the government’s breach, the
Court remanded to the state court and held:

         The ultimate relief to which petitioner is
         entitled we leave to the discretion of the state
         court, which is in a better position to decide
         whether the circumstances of this case require
         only that there be specific performance of the
         agreement on the plea, in which case
         petitioner should be resentenced by a different
         judge, or whether, in the view of the state
         court, the circumstances require granting the
         relief sought by petitioner, i.e., the
         opportunity to withdraw his plea of guilty.

Id. at 262–63. The Court noted that if “the state court decides
to allow withdrawal of the plea, the petitioner will, of course,
plead anew to the original charge on two felony counts.” Id.
at 263 n.2.

    Thus, contrary to the majority’s analysis, the Court in
Santobello did not hold that literally every plea agreement
offered by the prosecution and accepted by the defendant is
enforceable by specific performance. Rather, the Court held
that, when a trial court’s judgment of conviction is based on
a plea induced by a promise later broken by the state, the
judgment must be vacated. The Court further held that the


  12
    Accurate identification of the Supreme Court’s holdings is a critical
step in our analysis under 28 U.S.C. § 2254(d)(1) because “clearly
established Federal law” includes only the holdings, as opposed to the
dicta, of the Supreme Court’s decisions. See Donald, 135 S. Ct. at 1376.
38                      CUERO V. CATE

ultimate relief would be left “to the discretion of the state
court, which [was] in a better position to decide whether the
circumstances of [the] case” required specific performance or
withdrawal of the guilty plea. Id. at 263.

                               2

    The majority’s grant of the petition rests entirely on the
premise that “[u]nder clearly established Supreme Court law,
Cuero stood convicted and his plea agreement became
binding the moment the first Superior Court judge accepted
his guilty plea.” Maj. Op. at 8–9. Johnson undercuts such
premise.

    In Johnson, the Supreme Court addressed “whether a
defendant’s acceptance of a prosecutor’s proposed plea
bargain creates a constitutional right to have the bargain
specifically enforced.” 467 U.S. at 505. There, the
prosecutor proposed that, in exchange for a plea of guilty, the
prosecutor would recommend a 21-year sentence served
concurrently with other sentences. Id. at 505–06. When the
defendant’s counsel called the prosecutor and communicated
acceptance of the offer, the prosecutor told defense counsel
“that a mistake had been made and withdrew the offer.” Id.
at 506. The prosecutor then made a second offer to
recommend a 21-year sentence to be served consecutively to
the other sentences, which the defendant ultimately accepted.
Id. “In accordance with the plea bargain, the state trial judge
imposed a 21-year sentence to be served consecutively to the
previous sentences.” Id.

     In its analysis, the Court reasoned:
                           CUERO V. CATE                                39

         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.

Id. at 507–08 (footnote omitted). The majority completely
ignores the reasonable conclusion that a fairminded jurist
could draw from the first sentence of this passage: a “plea
bargain . . . is without constitutional significance . . . until
embodied in the judgment of a court.” Id.13 In other words,
it is the judgment, not the acceptance of a guilty plea, that
“seals the deal between the state and the defendant.” Contra
Maj. Op. at 9.14


  13
     The majority distorts this passage by selectively pairing three words
from the second sentence with three words from the first sentence: “A
defendant’s guilty plea thus ‘implicates the Constitution,’ transforming the
plea bargain from a ‘mere executory agreement’ into a binding contract.”
Maj. Op. at 9. However, such tortured paraphrasing does not remotely
reflect the passage above or the holding of Johnson.
 14
    Some confusion could arise from the Court’s use of “convicted” and
“conviction” in this passage and in Boykin v. Alabama, 395 U.S. 238, 242
(1969), upon which the majority relies. I note that the word “conviction”
has multiple meanings about which fairminded jurists can disagree. “It is
certainly correct that the word ‘conviction’ can mean either the finding of
guilt or the entry of a final judgment on that finding.” Deal v. United
States, 508 U.S. 129, 131 (1993); see also id. at 143–46 (Stevens, J.,
dissenting). Here, the Supreme Court used “conviction” in the latter
40                          CUERO V. CATE

    The Johnson Court further explained that “only when it
develops that the defendant was not fairly apprised of its
consequences can his plea be challenged under the Due
Process Clause.” 467 U.S. at 509. The Court then applied
that rule:

         [Johnson’s] plea was in no sense induced by
         the prosecutor’s withdrawn offer; unlike
         Santobello, who pleaded guilty thinking he
         had bargained for a specific prosecutorial
         sentencing recommendation which was not
         ultimately made, at the time respondent
         pleaded guilty he knew the prosecution would
         recommend a 21-year consecutive sentence.
         [Johnson] does not challenge the District
         Court’s finding that he pleaded guilty with the
         advice of competent counsel and with full
         awareness of the consequences—he knew that
         the prosecutor would recommend and that the
         judge could impose the sentence now under
         attack.

Id. at 510.

    The Court concluded that Johnson’s “inability to enforce
the prosecutor’s offer is without constitutional significance.”
Id. Johnson “was not deprived of his liberty in any


sense, i.e. the entry of a final judgment on a finding of guilt. Having just
stated that a plea bargain “does not deprive an accused of liberty or any
other constitutionally protected interest” “until embodied in the judgment
of a court,” the Court did not state two sentences later that a guilty plea
gives rise to the deprivation of a defendant’s liberty before the entry of
judgment. And, even if this understanding of the Court’s use of
“conviction” in Johnson is wrong, it is not objectively unreasonable.
                       CUERO V. CATE                        41

fundamentally unfair way. [He] was fully aware of the likely
consequences when he pleaded guilty; it is not unfair to
expect him to live with those consequences now.” Id. at 511.

    Thus, the Court in Johnson held that a defendant’s
inability to enforce a plea offer withdrawn before the entry of
judgment is without constitutional significance, not that every
breach of a plea agreement after a guilty plea violates the
Constitution. Consequently, there is no due process violation
so long as the prosecution fulfills the promises that induced
the plea upon which the judgment of conviction is based.

    More importantly, Johnson clarified the holding in
Santobello. The Court noted that “Santobello expressly
declined to hold that the Constitution compels specific
performance of a broken prosecutorial promise as the remedy
for such a plea” and that “permitting Santobello to replead
was within the range of constitutionally appropriate
remedies.” Id. at 510–11 n.11 (citing Santobello, 404 U.S. at
262–63; id. at 268–69 (Marshall, J., concurring in part and
dissenting in part)).       “It follows that [Johnson’s]
constitutional rights could not have been violated. Because
he pleaded after the prosecution had breached its ‘promise’ to
him, he was in no worse position than Santobello would have
been had he been permitted to replead.” Id.

                              3

    The majority also concludes, erroneously, that the state
court was “constitutionally obligated to construe the
agreement in accordance with state contract law” and that a
“state court must supply a remedy for a breached plea
agreement that comports with state contract law.” Maj. Op.
at 18, 20. Although the majority relies heavily on Adamson
42                          CUERO V. CATE

for these propositions, I respectfully suggest that case does
not support, let alone require, such conclusions.

    In Adamson, the Supreme Court addressed “whether the
Double Jeopardy Clause bars the prosecution of [a defendant]
for first-degree murder following his breach of a plea
agreement under which he had pleaded guilty to a lesser
offense, had been sentenced, and had begun serving a term of
imprisonment.” Adamson, 483 U.S. at 3.15 There, the
Arizona Supreme Court held that a written plea agreement16
required Adamson to testify at the retrial of the other two
individuals, that he violated the terms of the plea agreement
by refusing to testify at the retrials, and that the terms of the
plea agreement required the original first-degree murder
charge to be reinstated automatically. Id. at 5. The Supreme
Court held that the subsequent prosecution did not violate the
Double Jeopardy Clause. It reasoned that “terms of the
agreement could not be clearer: in the event of [Adamson’s]
breach occasioned by a refusal to testify, the parties would be
returned to the status quo ante, in which case [Adamson]
would have no double jeopardy defense to waive.” Id. at 10.
Thus, the Court held in Adamson that the Double Jeopardy
Clause does not bar a state from vacating a judgment of
conviction and reinstating criminal charges pursuant to the
express terms of a plea agreement.



  15
   Given this description, one might get the sense that the holding of
Adamson is unlikely to bear on the instant case.
   16
      Our Court published the entirety of the eighteen-paragraph plea
agreement in an appendix. See Adamson v. Ricketts, 789 F.2d 722,
731–33 (9th Cir. 1986), rev’d, 483 U.S. 1. Contrast that plea agreement
with the change of plea form in this case, which expressly states that there
was no plea agreement. See Appendix A at 1 ¶ 2.
                       CUERO V. CATE                        43

     The majority does not rely on the holding of Adamson for
its erroneous propositions, but rather on part of a sentence in
dictum contained in a footnote of the Court’s opinion. In
footnote 3, the Court addressed Adamson’s contention that
the Arizona Supreme Court had misconstrued the terms of the
plea agreement:

       We will not second-guess the Arizona
       Supreme Court’s construction of the language
       of the plea agreement. While we assess
       independently the plea agreement’s effect on
       respondent’s double jeopardy rights, the
       construction of the plea agreement and the
       concomitant obligations flowing therefrom
       are, within broad bounds of reasonableness,
       matters of state law, and we will not disturb
       the Arizona Supreme Court’s reasonable
       disposition of those issues. The dissent’s
       discourse on the law of contracts is thus
       illuminating but irrelevant. The questions
       whether the plea agreement obligated the
       respondent to testify at the retrial of Dunlap
       and Robison and, if so, whether the
       respondent breached this duty are matters
       appropriately left to the state courts. . . .

Adamson, 483 U.S. at 6 n.3 (emphasis added to the clause
upon which the majority relies). As the Supreme Court
eloquently once stated in an unrelated context: “Most
importantly, the statement is pure dictum. It is dictum
contained in a rebuttal to a counterargument. And it is
unnecessary dictum even in that respect.” Kirtsaeng v. John
Wiley & Sons, Inc., 133 S. Ct. 1351, 1368 (2013).
44                        CUERO V. CATE

    Even if not dictum, the footnote has been misinterpreted
by the majority. The majority, consistent with precedent of
our circuit,17 focuses solely on the statement that “the
construction of the plea agreement and the concomitant
obligations flowing therefrom are, within broad bounds of
reasonableness, matters of state law.” Maj. Op. at 15.
However, in context it is clear that the Supreme Court was
not stating that state courts are “constitutionally obligated to
construe the agreement in accordance with state contract law”
and that they violate the Constitution by failing to do so.
Maj. Op. at 18. And the footnote does not remotely support
the contention that a state court violates the Constitution if it
does not “supply a remedy for a breached plea agreement that
comports with state contract law.” Maj. Op. at 20. Quite the
opposite. Respecting important interests of federalism and
comity, the Court explained that the construction of plea
agreements and whether a breach has occurred are matters of
state law which are “appropriately left to the state courts.”
Adamson, 483 U.S. at 6–7 n.3. Federal courts must not
“second-guess[] the finding of a breach” and they have no
“license to substitute a federal interpretation of the terms of
a plea agreement for a reasonable state interpretation.” Id.
Thus, the Adamson footnote, upon which the majority relies,
is about deference to state courts, not about imposing new
constitutional requirements on state courts.




 17
    Buckley v. Terhune, 441 F.3d 688, 694–95 (9th Cir. 2006) (en banc);
Davis v. Woodford, 446 F.3d 957, 962 (9th Cir. 2006). As discussed
below, we should not follow these decisions because they are
irreconcilable with intervening decisions of the Supreme Court. See infra
note 20.
                      CUERO V. CATE                        45

                              C

   The California Court of Appeal’s decision was not
“contrary to” Santobello, Johnson, or Adamson. “Because
none of [the Supreme Court’s] cases confront ‘the specific
question presented by this case,’ the state court’s decision
could not be ‘contrary to’ any holding from” the Supreme
Court. Donald, 135 S. Ct. at 1377 (quoting Lopez v. Smith,
135 U.S. 1, 4 (2014) (per curiam)).

    In Santobello, the defendant pleaded guilty in reliance
upon the promises in the prosecution’s original offer, the
prosecution broke a promise contained in its original offer,
and the court entered judgment on the basis of the plea
induced by the unfulfilled promise. Unlike Santobello, here
the superior court’s judgment was not entered on the basis of
the initial plea, purportedly induced by unfulfilled promises.
Rather, judgment was entered on the basis of the subsequent
plea, which was induced by promises that have been fulfilled.
In Johnson, the prosecution withdrew its original offer before
the defendant pleaded guilty. Unlike Johnson, here the
prosecutor purportedly breached a plea agreement after the
defendant pleaded guilty. Finally, Adamson does not
remotely resemble this case. There, the defendant breached
his plea bargain, and the question was whether or not the
Double Jeopardy Clause prohibited the state from vacating
the conviction and reinstating criminal charges.

    Therefore, Santobello, Johnson, and Adamson do not
address the specific question presented by this case: whether
the Constitution requires specific performance of a plea
bargain after a defendant has pleaded guilty but before the
court has entered judgment. As a result, the state court’s
46                      CUERO V. CATE

decision could not be “contrary to” any holding from the
Supreme Court. See Donald, 135 S. Ct. at 1377.

                                D

    Nor was the California Court of Appeal’s decision an
“unreasonable application of” the Court’s holdings in
Santobello, Johnson, and Adamson. As discussed above,
fairminded jurists could easily conclude that Cuero’s initial
plea did not rest “on a promise or agreement of the
prosecutor, so that it can be said to be part of the inducement
or consideration.” Santobello, 404 U.S. at 262; see Appendix
A at 1 ¶ 2 (“I have not been induced to enter this plea by any
promise or representation of any kind, except: . . . NO
DEALS W/ PEOPLE.”).18

    Even assuming that the State did make a promise not to
amend its complaint, fairminded jurists could readily
conclude that, under Johnson, Cuero’s inability to enforce the
original plea agreement, which was withdrawn before the
entry of judgment, is “without constitutional significance.”
Johnson, 467 U.S. at 507–08, 510. Moreover, fairminded
jurists could conclude that, if the prosecution did breach some
binding agreement with Cuero, “permitting [Cuero] to replead
was within the range of constitutionally appropriate




     18
      Without any plea agreement to construe, Adamson’s purported
requirement to construe the plea agreement in accordance with state
contract law has no application here.
                           CUERO V. CATE                              47

remedies.” Johnson, 467 U.S. at 510–11 n.11 (explaining
Santobello); Santobello, 404 U.S. at 263 & n.2.19

    Therefore, the state court’s ruling on the claim presented
here was not “so lacking in justification that there was an
error well understood and comprehended in existing law
beyond any possibility for fairminded disagreement.”
Richter, 562 U.S. at 103. As a result, the state court’s ruling
was not an unreasonable application of Santobello, Johnson,
or Adamson.

                                   IV

    Perhaps the majority’s faulty analysis can best be
explained by its erroneous reliance on (1) perceived errors of
state law; (2) circuit precedent (to bridge the gap between the
Supreme Court’s holdings and this case); (3) a Supreme
Court decision that post-dates the California Court of
Appeal’s decision; and (4) issues of law framed at the highest
levels of generality. Making matters worse, the majority
misconstrues many of the sources of law upon which it
improperly relies.

                                   A

                                    1

    The majority erroneously relies on perceived errors of
state law. Maj. Op. at 15–22 & n.10; see Swarthout v. Cooke,


   19
      Adamson indirectly reinforces this conclusion with its repeated
emphasis that returning the defendant to the status quo ante—i.e.,
restoring his trial rights fully—resulted in no double jeopardy violation.
See Adamson, 483 U.S. at 10–11.
48                      CUERO V. CATE

562 U.S. 216, 219–22 (2011) (per curiam); Wilson v.
Corcoran, 562 U.S. 1, 5 (2010) (per curiam); Estelle v.
McGuire, 502 U.S. 62, 67 (1991); Lewis v. Jeffers, 497 U.S.
764, 780 (1990); Pulley v. Harris, 465 U.S. 37, 41 (1984);
Rose v. Hodges, 423 U.S. 19, 21–22 (1975) (per curiam).

    Specifically, it holds that the writ must issue because the
state court failed “to interpret Cuero’s plea agreement
consistently with California contract law” and failed to
“supply a remedy for a breached plea agreement that
comports with state contract law.” Maj. Op. at 20. “But it is
only noncompliance with federal law that renders a State’s
criminal judgment susceptible to collateral attack in the
federal courts. The habeas statute unambiguously provides
that a federal court may issue the writ to a state prisoner ‘only
on the ground that he is in custody in violation of the
Constitution or laws or treaties of the United States.’”
Corcoran, 562 U.S. at 5 (quoting 28 U.S.C. § 2254(a)). The
Supreme Court has “repeatedly held that ‘federal habeas
corpus relief does not lie for errors of state law.’” Id. (quoting
McGuire, 502 U.S. at 67). “It is not the province of a federal
habeas court to reexamine state-court determinations on state-
law questions.” Id. (quoting McGuire, 502 U.S. at 67–68)
(alteration omitted).

    The majority protests that these cases “do not speak to the
situation where, as here, the Supreme Court has clearly held
that the federal constitutional due process right is itself
defined by reference to principles of state law.” Maj. Op. at
16 n.10. One would expect a citation to Supreme Court
precedent to follow such a strong statement, but none exists.
The majority cites our Buckley case, which cites Adamson.
Maj. Op. at 16 n.10. But Adamson held no such thing. In
fact, Adamson does not contain the words “due process”
                          CUERO V. CATE                              49

anywhere in the Court’s opinion. “No opinion of [the
Supreme Court] supports converting California’s [contract
law] into a substantive federal requirement.” Cooke,
562 U.S. at 220–21.20

                                   2

    Even if the court could grant habeas relief on the basis of
state law, the majority misconstrues California state law.

    California state law did not prohibit the second
amendment of the complaint. Several provisions of the
California Penal Code expressly permit a prosecutor to amend
an information or complaint. See Cal. Penal Code §§ 969a,
969.5(a), 1009. “Under section 1009, the People may amend
an information without leave of court prior to entry of a
defendant’s plea, and the trial court may permit an
amendment of an information at any stage of the
proceedings.” People v. Lettice, 163 Cal. Rptr. 3d 862, 868
(Ct. App. 2013). Sections 969a and 969.5(a) specifically deal
with amendment of the complaint to add allegations of prior
felonies, and § 969.5(a), upon which the State relied,
addresses amendment of a complaint after a guilty plea:




  20
     Just as we did in Cooke, our Court in Brown v. Poole, 337 F.3d 1155
(2003), Buckley, and Davis relied upon a perceived error of state law to
conclude that the federal Due Process Clause was violated. Accordingly,
with respect to its analysis regarding the required remedy, the reasoning
of these cases has been undermined to the point that it is clearly
irreconcilable with Corcoran and Cooke. See Lair v. Bullock, 798 F.3d
736, 745 (9th Cir. 2015) (citing Miller v. Gammie, 335 F.3d 889, 892–93
(9th Cir. 2003) (en banc)). Brown, Buckley, and Davis are of no help to
the majority’s analysis.
50                     CUERO V. CATE

       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.

Cal. Penal Code § 969.5(a). None of these statutes indicate
that a prosecutor’s ability to amend the information is limited
to situations in which a plea agreement has been entered.

    In People v. Valladoli, the California Supreme Court
interpreted both § 969a and former § 969 ½ in determining
whether an information could be amended to allege prior
felonies after a defendant was found guilty at trial. 918 P.2d
999 (Cal. 1996). Discussing former § 969 ½, the predecessor
to § 969.5(a), the court said that if the defendant had “pleaded
guilty before the magistrate under section 859a, . . . the
express terms of section 969 ½ would have permitted the
People to amend the information to charge his prior
convictions after the guilty plea.” Id. at 1005; see also
People v. Tindall, 14 P.3d 207, 212 (Cal. 2000) (citing
Valladoli for this proposition). The court continued, “An
obvious motivating force underlying section 969 ½ is to
prevent one accused of a crime from quickly pleading guilty
before a magistrate and thereby limiting the amount of time
the prosecutor has to investigate, discover, and charge the
accused’s prior felony convictions.” Valladoli, 918 P.2d at
1005.
                            CUERO V. CATE                               51

    Thus, the state statutory scheme and Valladoli permit a
prosecutor to request to file an amended complaint to allege
prior convictions after entering a plea agreement. The
majority fails to cite any California case which has
definitively held that a prosecutor may not amend a complaint
after the court accepts a plea agreement.21

    Ultimately, the Supreme Court has “repeatedly held that
a state court’s interpretation of state law, including one
announced on direct appeal of the challenged conviction,
binds a federal court sitting in habeas corpus.” Bradshaw v.
Richey, 546 U.S. 74, 76 (2005) (per curiam). Here, both the
superior court and the appellate court determined that
amendment of the complaint was permissible under state law.
We must defer to those interpretations and conclude that there
was no error of state law. Rather than deferring, the
majority’s decision severely undermines the California
Legislature’s determination, in enacting sections 969.5(a) and
1009, that prosecutors should have the ability, with the
approval of the court, to amend a complaint after a plea to
allege all prior felonies.




  21
    In Lettice, the California Court of Appeal was presented with a case
similar to this one, but did not decide this issue. On appeal, because the
defendant did not argue that the prosecutor was precluded from filing an
amended information after entering the plea agreement, the court of appeal
expressly did not decide that issue. Lettice, 163 Cal. Rptr. 3d at 871 n.12.
The court of appeal remanded to the superior court with instructions to
exercise its discretion to determine whether to permit the amendment of
the complaint. Id. at 873.
52                    CUERO V. CATE

                              B

                              1

    The majority erroneously relies (heavily) on circuit
precedent to bridge the gap between the Supreme Court’s
cases and this one. See Glebe v. Frost, 135 S. Ct. 429, 431
(2014) (per curiam); Lopez v. Smith, 135 S. Ct. 1, 4 (2014)
(per curiam); Marshall v. Rodgers, 133 S. Ct. 1446, 1450–51
(2013) (per curiam); Parker v. Matthews, 132 S. Ct. 2148,
2155–56 (2012) (per curiam); Renico v. Lett, 559 U.S. 766,
778–79 (2010).

    Specifically, the majority relies on circuit precedent for
the following propositions, which are not supported by the
Supreme Court’s decisions:

       (1) The “federal constitutional due process
           right is itself defined by reference to
           principles of state law,” Maj. Op. at 16
           n.10 (citing Buckley, 441 F.3d at 695); a
           state court is “constitutionally obligated to
           construe the [plea] agreement in
           accordance with state contract law.” Maj.
           Op. at 18 (citing Buckley, 441 F.3d at
           696); “[u]nder AEDPA, we . . . must
           consider whether the [state court] decision
           is consistent with a proper application of
           state contract law in interpreting the plea
           agreement . . . .” Maj. Op. at 15 (quoting
           Davis, 446 F.3d at 962).

       (2) “[W]here the state has already received
           the benefit it bargained for—a plea of
                      CUERO V. CATE                        53

           guilty and a conviction—specific
           performance is the best remedy, unless the
           defendant, whose choice it becomes,
           ‘elect[s] instead to rescind the agreement
           and take his chances from there.’” Maj.
           Op. at 20 (quoting Buckley, 441 F.3d at
           699 n.11).

       (3) “Because Cuero had already performed,
           ‘fundamental fairness demands that the
           state be compelled to adhere to the
           agreement as well.’” Maj. Op. at 21
           (quoting Brown, 337 F.3d at 1162).

Take the first proposition. As discussed above, Adamson
does not even contain the words “due process,” so the notion
that the “federal constitutional due process right is itself
defined by reference to principles of state law” comes solely
from Buckley. Similarly, footnote 3 of Adamson says nothing
about state contract law. See Adamson, 483 U.S. at 6 n.3
(construction and breach determinations are “matters of state
law”). So the majority’s restriction of the relevant state law
to contract law comes solely from circuit precedent in
Buckley and Davis. See, e.g., Maj. Op. at 18 n.12 (rejecting
argument under § 969.5(a) because that section “is irrelevant
to the interpretation of a court-approved plea agreement under
state contract principles”). Finally, no Supreme Court
decisions remotely support the notion that specific
performance is required when a defendant has pleaded guilty
and the court has accepted that plea. Such notions are
inventions of our circuit.

    The Supreme Court has “repeatedly emphasized [that]
circuit precedent does not constitute ‘clearly established
54                      CUERO V. CATE

Federal law, as determined by the Supreme Court.’” Frost,
135 S. Ct. at 431 (quoting 28 U.S.C. § 2254(d)(1)). “It
therefore cannot form the basis for habeas relief under
AEDPA.” Matthews, 132 S. Ct. at 2155. And “Circuit
precedent cannot ‘refine or sharpen a general principle of
Supreme Court jurisprudence into a specific legal rule that
[the Supreme Court] has not announced.’” Smith, 135 S. Ct.
at 4 (quoting Rodgers, 133 S. Ct. at 1450). In the past three
years, the Supreme Court has caught us three times trying to
evade this rule. See Frost, 135 S. Ct. at 431 (“The Ninth
Circuit acknowledged this rule, but tried to get past it . . . .”);
Smith, 135 S. Ct. at 4 (“The Ninth Circuit attempted to evade
this barrier . . . .”); Rodgers, 133 S. Ct. at 1450–51. It is
unwise to think that we will slip through this time around.

                                2

    Even if the majority could properly rely on our decisions
in Brown, Buckley, and Davis, those cases not compel the
conclusion that the majority reaches.

    For instance, Brown and Buckley acknowledged that there
are “two available remedies at law for the breach of [a] plea
agreement: withdrawal of [the] plea (i.e., rescission of the
contract) and specific performance.” Buckley, 441 F.3d at
699; Brown, 337 F.3d at 1161. In choosing between those
remedies in Buckley, the en banc court “express[ed] no view
on what the proper remedy would be in a case with other
facts.” Id. at 699 n.11.

    Cuero’s circumstances are readily distinguishable from
those in Brown and Buckley. In both cases, we ordered
specific performance because rescission of the contract was
“impossible” under the circumstances and the petitioners
                       CUERO V. CATE                         55

could not “conceivably be returned to the status quo ante.”
Brown, 337 F.3d at 1161; Buckley, 441 F.3d at 699. The
petitioners had “paid in a coin that the state cannot refund” by
testifying and/or serving their bargained-for sentences.
Buckley, 441 F.3d at 699 (quoting Brown, 337 F.3d at 1161).
Here, when the superior court granted permission to amend
the complaint, Cuero had not performed in a way that could
not be undone. Instead, to the extent Cuero had performed,
the “coin” he paid was fully refunded when his relinquished
trial rights were fully restored. Thus, specific performance
was not required by our precedents because rescission was
still possible for Cuero.

    In addition, Cuero’s case differs from Davis, Buckley, and
Brown because the petitioners were incarcerated on the basis
of pleas induced by plea agreements that the state breached.
See Davis, 446 F.3d at 959–63; Buckley, 441 F.3d at 691–93;
Brown, 337 F.3d at 1157–58. Thus, those cases were much
closer to Santobello. Here, the initial plea, purportedly
induced by a plea agreement which the state breached, was
withdrawn and does not form the basis of Cuero’s
incarceration. Cuero’s case is much closer to Johnson. He
“was not deprived of his liberty in any fundamentally unfair
way. [He] was fully aware of the likely consequences when
he pleaded guilty; it is not unfair to expect him to live with
those consequences now.” Johnson, 467 U.S. at 511.

                               C

                               1

    The majority erroneously relies upon a Supreme Court
opinion—and numerous other authorities—issued after all of
the state court decisions that related to Cuero. See Greene v.
56                       CUERO V. CATE

Fisher, 132 S. Ct. 38, 44–45 (2011); Cullen v. Pinholster,
563 U.S. 170, 182 (2011); Andrade, 538 U.S. at 71–72; see
also Woodall, 134 S. Ct. at 1706.

   Specifically, the panel relies on Puckett v. United States,
556 U.S. 129 (2009), for the following propositions:

        (1) “A state court must supply a remedy for a
            breached plea agreement that comports
            with state contract law.” Maj. Op. at 20
            (citing Puckett, 556 U.S. at 137).22

        (2) The purported breach of Cuero’s plea
            agreement was “undoubtedly a violation
            of the defendant’s rights.” Maj. Op. at 6
            (quoting Puckett, 556 U.S. at 136).

        (3) “[P]lea bargains are essentially contracts.”
            Maj. Op. at 15 (quoting Puckett, 556 U.S.
            at 137).

Section 2254(d)(1) “requires federal courts to focus on what
a state court knew and did, and to measure state-court
decisions against [the Supreme Court’s] precedents as of the
time the state court renders its decision.” Greene, 132 S. Ct.
at 44 (internal alteration and quotation marks omitted)
(emphasis in original). “Obviously, a state-court decision
cannot be contrary to clearly established Federal law that was
not yet in existence.” Murray, 745 F.3d at 997. Thus,


  22
     The majority also cites Adamson, 483 U.S. at 5 n.3, and Davis,
446 F.3d at 962, for this proposition. Maj. Op. at 20. None of the
authorities cited support the majority’s contention, let alone clearly
establish such contention.
                        CUERO V. CATE                          57

because Puckett was issued after the California Court of
Appeal’s decision, it was not “clearly established Federal
law” at the time the state court rendered its decision.
Consequently, the majority cannot rely on Puckett.

    The majority also relies on a number of other authorities
issued after the state court’s decision to state the principles of
law that the state court should have applied. See Maj. Op. at
9 (relying on Doe v. Harris, 640 F.3d 972, 975 (9th Cir.
2011)); id. at 16 (relying on People v. Segura, 188 P.3d 649,
656 (Cal. 2008)); id. at 17 (relying on Sateriale v. R.J.
Reynolds Tobacco Co., 697 F.3d 777, 791 (9th Cir. 2012));
id. at 20 (relying on In re Timothy N., 157 Cal. Rptr. 3d 78,
88 (Ct. App. 2013)); id. at 20–21 n.14 (relying on 5 Wayne R.
LaFave et al., Criminal Procedure § 21.2(e) (4th ed. 2015)).
This reliance, too, was impermissible, for the state court
cannot be expected to apply rules of law stated in authorities
not yet in existence.

                                2

   Even if the majority could rely on Puckett, that case
cannot support the weight of the majority’s argument.

    The Supreme Court in Puckett stated that “[w]hen a
defendant agrees to a plea bargain, the Government takes on
certain obligations. If those obligations are not met, the
defendant is entitled to seek a remedy, which might in some
cases be rescission of the agreement, allowing him to take
back the consideration he has furnished, i.e., to withdraw his
plea.” 556 U.S. at 137. Clearly, withdrawal of the plea is a
constitutionally permissible remedy, and Cuero received that
remedy. The Puckett Court did not remotely suggest that the
determination of which remedy to afford is a matter of state
58                    CUERO V. CATE

contract law. Also, the Puckett Court acknowledged that,
although “plea bargains are essentially contracts,” “the
analogy may not hold in all respects.” Id. This undermines
the majority’s proposition that only state contract law can be
used to determine whether amendment of the complaint was
permitted.

                              D

    Finally, the majority erroneously frames legal issues at
the highest levels of generality. See Donald, 135 S. Ct. at
1377; Smith, 135 S. Ct. at 4; Nevada v. Jackson, 133 S. Ct.
1990, 1994 (2013) (per curiam); cf. City & County of San
Francisco v. Sheehan, 135 S. Ct. 1765, 1775–76 (2015) (“We
have repeatedly told courts—and the Ninth Circuit in
particular—not to define clearly established law at a high
level of generality.” (quoting Ashcroft v. al-Kidd, 563 U.S.
731, 742 (2011))). “By framing [the Supreme Court’s]
precedents at such a high level of generality, a lower federal
court could transform even the most imaginative extension of
existing case law into ‘clearly established Federal law, as
determined by the Supreme Court.’” Jackson, 133 S. Ct. at
1994 (quoting 28 U.S.C. § 2254(d)(1)). Such an “approach
would defeat the substantial deference that AEDPA requires.”
Id.

    The majority can only grant habeas relief if the Supreme
Court’s cases clearly establish that a defendant has a due
process right to specific performance of a plea agreement
before the entry of judgment. But none of the Supreme
Court’s cases addresses that specific issue. See Smith, 135 S.
Ct. at 4.
                       CUERO V. CATE                          59

    Instead, the best the majority can do is to point to
Adamson for the general proposition that “the construction of
[a] plea agreement and the concomitant obligations flowing
therefrom are, within broad bounds of reasonableness,
matters of state law.” 483 U.S. at 6 n.3. “This proposition is
far too abstract to establish clearly the specific rule [Cuero]
needs.” Smith, 135 S. Ct. at 4.

    The majority treats the door supposedly opened by
Adamson’s general proposition as license to engage freely in
de novo determination of what California contract law
requires, both for the construction of the agreement and the
remedy for a breach. Maj. Op. at 15–22. Again, however, no
California cases establish that specific performance is
required when the State amends its complaint after entry of a
plea but before judgment. As a result, the majority is forced
to frame principles of California law at the highest level of
generality in order to conclude that specific performance is
required. The majority rests its decision on the very general
principle that “the remedy for breach must ‘repair the harm
caused by the breach.’” Maj. Op. at 20 (quoting People v.
Toscano, 20 Cal. Rptr. 3d 923, 927 (Ct. App. 2004)). Such a
general proposition obviously does not establish, under
California law, that specific performance was the only
remedy in this situation that could repair the harm caused by
the breach.

    To supply that final conclusion, the majority relies purely
on its own de novo, ipse dixit analysis. Note that the key last
paragraph before its conclusion section contains only a single
citation to a source of law, and that citation does not establish
that specific performance is required here. Ultimately, the
court’s decision rests on its own determinations that it would
be unfair not to require specific performance, Maj. Op. at 21,
60                         CUERO V. CATE

and that “specific performance is necessary to maintain the
integrity and fairness of the criminal justice system,” Maj.
Op. at 20–21 n.14.23 These conclusions are not dictated by
state or federal law.

                                   V

    For the foregoing reasons, I respectfully conclude that the
majority erroneously orders reversal of the district court and
grant of the writ. In accordance with Supreme Court law, a
fairminded jurist could conclude that Cuero’s plea was not
induced by any promise by the prosecutor. See Appendix A.
Even assuming there was such a promise, a fairminded jurist
could conclude that the plea agreement was without
constitutional significance before the entry of judgment.
And, even if there were a breach of a constitutionally binding
plea agreement, nothing in any Supreme Court decision
clearly establishes that the state court was required to order
specific performance. Thus, the state court’s decision was
neither contrary to, nor an unreasonable application of
“clearly established Federal law.” 28 U.S.C. § 2254(d)(1).

       For the foregoing reasons, I respectfully dissent.




  23
     The majority determines that “specific performance is necessary to
maintain the integrity and fairness of the criminal justice system” on the
basis of a treatise, a 1977 Washington Supreme Court decision, and an
article in the second volume of the now-defunct University of San
Fernando Valley Law Review. Maj. Op. at 20–21 n.14. These hardly
constitute “clearly established Federal law, as determined by the Supreme
Court.” 28 U.S.C. § 2254(d)(1).
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