                            NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                               NOV 22 2013

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

JASON RAY TYLER,                                  No. 12-15966

              Petitioner - Appellant,             D.C. Nos.    4:10-cv-00353-RCC
                                                               4:10-cv-00543-RCC
  v.

CHARLES L. RYAN and TERRY L.                      MEMORANDUM*
GODDARD,

              Respondents - Appellees.


                   Appeal from the United States District Court
                            for the District of Arizona
                  Raner C. Collins, Chief District Judge, Presiding

                     Argued and Submitted November 5, 2013
                            San Francisco, California

Before: FARRIS, FERNANDEZ, and IKUTA, Circuit Judges.

       Jason Ray Tyler appeals the district court’s dismissal of his petition for

habeas corpus. We have jurisdiction under 28 U.S.C. § 2253(a), and we affirm.

       Even assuming the state breached the first plea agreement by entering a

subsequent indictment against Tyler, the state appellate court’s rejection of Tyler’s


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
claim that the breach violated his due process rights was not an unreasonable

application of Santobello v. New York, 404 U.S. 257 (1971). See 28 U.S.C.

§ 2254(d)(1); Williams v. Taylor, 529 U.S. 362, 405–06 (2000). The state

appellate court could make “a principled distinction,” Murdoch v. Castro, 609 F.3d

983, 991 (9th Cir. 2010) (en banc), between Tyler’s case and Santobello because

Tyler withdrew his motion to dismiss the second indictment and subsequently

accepted a guilty plea conditioned on having his sentences for both convictions run

concurrently.

      Nor did the state appellate court unreasonably apply Blackledge v. Perry,

417 U.S. 21, 30–31 (1974), or Menna v. New York, 423 U.S. 61, 62 (1975), which

establish narrow exceptions to the general rule that a defendant cannot challenge

pre-plea constitutional errors once a plea has been entered. See United States v.

Broce, 488 U.S. 563, 569 (1989). Rather, the court assumed that Tyler was entitled

to this exception, considered his claim that the second indictment violated his

rights under the Double Jeopardy Clause, and rejected the claim because the first

conviction was for a crime that had an element not included in the second

conviction, and vice versa.

      Finally, Tyler has not identified any clearly established Supreme Court

precedent holding that a defendant’s right to due process is violated when a state


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court accepts a guilty plea from a defendant who has raised and abandoned a claim

that the prosecution at issue breaches a prior plea agreement. Accordingly, to the

extent this argument was raised to the state appellate court, its rejection of the

claim was not an unreasonable application of Supreme Court precedent.

AFFIRMED.




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