Kernan v. Cuero , 199 L. Ed. 2d 236 ( 2017 )

Cite as: 583 U. S. ____ (2017) 1
Per Curiam
SUPREME COURT OF THE UNITED STATES
SCOTT KERNAN, SECRETARY, CALIFORNIA
DEPARTMENT OF CORRECTIONS AND REHA-
BILITATION v. MICHAEL DANIEL CUERO
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
No. 16–1468. Decided November 6, 2017
PER CURIAM.
The Antiterrorism and Effective Death Penalty Act of
1996 provides that a federal court may grant habeas relief
to a state prisoner based on a claim adjudicated by a state
court on the merits if the resulting decision is “contrary to,
or involved an unreasonable application of, clearly estab-
lished Federal law, as determined by the Supreme Court
of the United States.” 28 U.S. C. §2254(d)(1). In this
case, a California court permitted the State to amend a
criminal complaint to which the respondent, Michael
Cuero, had pleaded guilty. That guilty plea would have
led to a maximum sentence of 14 years and 4 months. The
court acknowledged that permitting the amendment
would lead to a higher sentence, and it consequently per-
mitted Cuero to withdraw his guilty plea. Cuero then
pleaded guilty to the amended complaint and was sen-
tenced to a term with a minimum of 25 years.
A panel of the Court of Appeals for the Ninth Circuit
subsequently held that the California court had made a
mistake of federal law. In its view, the law entitled Cuero
to specific performance of the lower 14-year, 4-month
sentence that he would have received had the complaint
not been amended.
The question here is whether the state-court decision
“involved an unreasonable application o[f] clearly estab-
lished Federal law, as determined by the Supreme Court
of the United States.” Ibid. Did our prior decisions (1)
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clearly require the state court to impose the lower sen-
tence that the parties originally expected; or (2) instead
permit the State’s sentence-raising amendment where the
defendant was allowed to withdraw his guilty plea? Be-
cause no decision from this Court clearly establishes that
a state court must choose the first alternative, we reverse
the Ninth Circuit’s decision.
I
On October 27, 2005, the State of California charged
Michael Cuero with two felonies and a misdemeanor. App.
to Pet. for Cert. 26a–33a. Its complaint alleged that on
October 14, 2005, Cuero drove his car into, and seriously
injured, Jeffrey Feldman, who was standing outside of his
parked pickup truck. Id., at 27a–28a. The complaint
further alleged that Cuero was then on parole, that he was
driving without a license, that he was driving under the
influence of methamphetamine, and that he had in his
possession a loaded 9-millimeter semiautomatic pistol.
Ibid.
Cuero initially pleaded “not guilty.” But on December 8,
he changed his plea. A form entitled “PLEA OF
GUILTY/NO CONTEST—FELONY” signed by Cuero, the
prosecutor, and the trial court memorialized the terms of
Cuero’s guilty plea. See id., at 77a–85a. On that form,
Cuero pleaded guilty to the two felony counts. Ibid.; see
Cal. Veh. Code Ann. §23153(a) (West 2017) (causing bodily
injury while driving under the influence of a drug); Cal.
Penal Code Ann. §12021(a)(1) (West 2005) (unlawful
possession of a firearm). He also admitted that he had
previously served four separate prison terms, including a
term for residential burglary, which qualifies as a predi-
cate offense under California’s “three strikes” law. Cal.
Penal Code Ann. §667(a)(1) (West 2017); see Ewing v.
California, 538 U.S. 11, 15–17 (2003). Finally, Cuero
acknowledged on this guilty-plea form that he understood
Cite as: 583 U. S. ____ (2017) 3
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that he “may receive this maximum punishment as a
result of my plea: 14 years, 4 months in State Prison,
$10,000 fine and 4 years parole.” App. to Pet. for Cert.
80a.
Following a hearing, the state trial court accepted the
plea and granted California’s motion to dismiss the re-
maining misdemeanor charge. The court then scheduled
the sentencing hearing for January 11, 2006.
Before the hearing took place, however, the prosecution
determined that another of Cuero’s four prior convictions
qualified as a “strike” and that the signed guilty-plea form
had erroneously listed only one strike. See Cal. Penal
Code Ann. §245(a)(1) (assault with a deadly weapon). This
second strike meant that Cuero faced not a maximum
punishment of just over 14 years (172 months), but a
minimum punishment of 25 years. §§667(e)(2)(A)(ii),
1170.12(c)(2)(A)(ii).
The State asked the trial court for permission to amend
the criminal complaint accordingly. It pointed to Cal.
Penal Code §969.5(a), which provides:
“Whenever it shall be discovered that a pending com-
plaint 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 or-
der of the court.”
Cuero argued that the State’s motion was untimely and
prejudicial. But the trial court granted the motion. At the
same time, the court permitted Cuero to withdraw his
guilty plea in light of the change. It concluded that
§969.5(a) “guide[d]” its inquiry and was best read to reflect
a legislative determination that criminal complaints
should charge all prior felony convictions. App. to Pet. for
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Cert. 178a. The court added that the case was distin-
guishable from “a situation where the [State] might, after
a guilty plea, seek to amend” a criminal complaint by
adding “new charges” or facts that fundamentally alter the
substance of the complaint. Id., at 179a. But here, where
only “alleged prior convictions” were at issue, the court
could eliminate any prejudice to Cuero by allowing him to
withdraw his initial guilty plea, thereby restoring both
parties to the status quo prior to its entry. Ibid.
Soon thereafter, California amended the complaint. The
complaint as amended charged Cuero with one felony,
(causing bodily injury while driving under the influence of
a drug under Cal. Veh. Code Ann. §23153(a)), and it al-
leged two prior strikes. Cuero then withdrew his initial
guilty plea and entered a new guilty plea to the amended
complaint. On April 20, 2006, the trial court sentenced
Cuero to the stipulated term of 25 years to life. His
conviction and sentence were affirmed on direct appeal,
and the California Supreme Court denied a state habeas
petition.
Cuero then filed a petition for federal habeas relief in
the United States District Court for the Southern District
of California. The Federal District Court denied Cuero’s
petition, but the Court of Appeals for the Ninth Circuit
reversed. Cuero v. Cate, 827 F.3d 879 (2016).
The Ninth Circuit panel hearing the appeal held that
the state trial court had “acted contrary to clearly estab-
lished Supreme Court law” by “refusing to enforce the
original plea agreement” with its 172-month maximum
sentence. Id., at 888. It wrote that “[i]n this context,
specific performance” of that plea agreement—i.e., sen-
tencing Cuero to no more than the roughly 14-year sen-
tence reflected in the 2005 guilty-plea form—was “neces-
sary to maintain the integrity and fairness of the criminal
justice system.” Id., at 890, n. 14. The Ninth Circuit
denied rehearing en banc over the dissent of seven judges.
Cite as: 583 U. S. ____ (2017) 5
Per Curiam
Cuero v. Cate, 850 F.3d 1019 (2017). The State then filed
a petition for certiorari here.
II
The Ninth Circuit has already issued its mandate in
this case. And the state trial court, in light of that man-
date, has resentenced Cuero. Cuero argues that this fact
renders this controversy moot. The State and Cuero,
however, continue to disagree about the proper length of
Cuero’s sentence, a portion of which he has not yet served.
Thus, neither the losing party’s failure to obtain a stay
preventing the mandate of the Court of Appeals from
issuing nor the trial court’s action in light of that mandate
makes the case moot. Mancusi v. Stubbs, 408 U.S. 204,
206–207, and n. 1 (1972); Eagles v. United States ex rel.
Samuels, 329 U.S. 304, 306–308 (1946). Reversal would
simply “und[o] what the habeas corpus court did,” namely,
permit the state courts to determine in the first instance
the lawfulness of a longer sentence not yet served. Id.,
at 308.
III
The Ninth Circuit, in ordering specific performance of
the 172-month sentence set forth on Cuero’s original
guilty-plea form, reasoned as follows. First, the court
concluded that Cuero’s guilty-plea form amounts to an
enforceable plea agreement. 827 F.3d, at 884–885. Sec-
ond, that plea agreement amounts to, and should be inter-
preted as, a contract under state contract law. Id., at 883
(citing Ricketts v. Adamson, 483 U.S. 1, 5, n. 3 (1987)).
Third, California contract law would consider the State’s
motion to amend the complaint as a breach of contract.
827 F.3d, at 887–890. Fourth, “the remedy for breach
must ‘repair the harm caused by the breach.’ ” Id., at 890
(quoting People v. Toscano, 124 Cal. App. 4th 340, 20 Cal.
Rptr. 3d 923, 927 (2004)). Fifth, rescission failed to “ ‘re-
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pair the harm.’ ” 827 F.3d, at 891. Sixth, consequently
Cuero was entitled to specific performance, namely, a
maximum prison term of 172 months (14 years and 4
months). Ibid. And, seventh, the state court’s contrary
decision was itself “contrary to, or involved an unreason-
able application of, clearly established Federal law, as
determined by the Supreme Court of the United States.”
28 U.S. C. §2254(d)(1); see 827 F.3d, at 888.
We shall assume purely for argument’s sake that the
State violated the Constitution when it moved to amend
the complaint. But we still are unable to find in Supreme
Court precedent that “clearly established federal law”
demanding specific performance as a remedy. To the
contrary, no “holdin[g] of this Court” requires the remedy
of specific performance under the circumstances present
here. Harrington v. Richter, 562 U.S. 86, 100 (2011).
Two of our prior decisions address these issues. The
first, Santobello v. New York, 404 U.S. 257 (1971), held
that a defendant may not be bound to a plea agreement
following a prosecutorial breach of an enforceable provi-
sion of such an agreement. Id., at 262. As relevant here,
however, Chief Justice Burger wrote in the opinion for the
Court that the “ultimate relief to which petitioner is enti-
tled” must be left “to the discretion of the state court,
which is in a better position to decide whether the circum-
stances of this case require only that there be specific
performance of the agreement on the plea” or, alterna-
tively, that “the circumstances require granting the relief
sought by petitioner, i.e., the opportunity to withdraw his
plea of guilty.” Id., at 262–263.
The Ninth Circuit cited a concurrence in Santobello by
Justice Douglas, which added that “a court ought to accord
a defendant’s [remedial] 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.” 827 F.3d, at 891, n. 14
Cite as: 583 U. S. ____ (2017) 7
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(quoting Santobello, supra, at 267). Three other Justices
agreed with Justice Douglas on this point, and because
only seven Justices participated in the case, the Ninth
Circuit suggested that a four-Justice majority in Santo-
bello seemed to favor looking to the defendant’s preferred
remedy. 827 F.3d, at 891, n. 14 (citing Santobello, supra,
at 268, and n. (Marshall, J., concurring in part and dis-
senting in part)). The Ninth Circuit also pointed in sup-
port to its own Circuit precedent, a criminal procedure
treatise, a decision of the Washington Supreme Court, and
a law review article. See 827 F.3d, at 890–891, n. 14
(citing Buckley v. Terhune, 441 F.3d 688, 699, n. 11 (CA9
2006); 5 W. LaFave, J. Israel, N. King, & O. Kerr, Crimi-
nal Procedure §21.2(e) (4th ed. 2015); State v. Tourtellotte,
88 Wash. 2d 579, 564 P.2d 799, 802 (1977); and Fischer,
Beyond Santobello—Remedies for Reneged Plea Bargains,
2 U. San Fernando Valley L. Rev. 121, 125 (1973)).
There are several problems with the Ninth Circuit’s
reasoning below. First, “ ‘fairminded jurists could dis-
agree’ ” with the Ninth Circuit’s reading of Santobello.
Richter, supra, at 101 (quoting Yarborough v. Alvarado,
541 U.S. 652, 664 (2004)). Moreover, in Mabry v. John-
son, 467 U.S. 504 (1984), the Court wrote that “Santobello
expressly declined to hold that the Constitution compels
specific performance of a broken prosecutorial promise as
the remedy for such a plea.” Id., at 510–511, n. 11 (citing
Santobello, 404 U.S., at 262–263; id., at 268–269 (Mar-
shall, J., concurring in part and dissenting in part)). The
Court added that “permitting Santobello to replead was
within the range of constitutionally appropriate remedies.”
467 U.S., at 510, n. 11. Where, as here, none of our prior
decisions clearly entitles Cuero to the relief he seeks, the
“state court’s decision could not be ‘contrary to’ any hold-
ing from this Court.” Woods v. Donald, 575 U. S. ___, ___
(2015) (per curiam) (slip op., at 6) (quoting Lopez v. Smith,
574 U. S. ___, ___ (2014) (per curiam) (slip op., at 5)).
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Finally, as we have repeatedly pointed out, “circuit prece-
dent does not constitute ‘clearly established Federal law,
as determined by the Supreme Court.’ ” Glebe v. Frost, 574
U. S. ___, ___ (2014) (per curiam) (slip op., at 3) (quoting
28 U.S. C. §2254(d)(1)). Nor, of course, do state-court
decisions, treatises, or law review articles.
For all these reasons, we conclude that the Ninth Cir-
cuit erred when it held that “federal law” as interpreted by
this Court “clearly” establishes that specific performance
is constitutionally required here. We decide no other issue
in this case.
The petition for a writ of certiorari and respondent’s
motion to proceed in forma pauperis are granted. We
reverse the judgment of the United States Court of Ap-
peals for the Ninth Circuit and remand the case for fur-
ther proceedings consistent with this opinion.
It is so ordered.