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In the Supreme Court of the United States No. In the Supreme Court of the United States SCOTT KERNAN, Petitioner, v. MICHAEL DANIEL CUERO, Respondent. ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT PETITION FOR A WRIT OF CERTIORARI XAVIER BECERRA Attorney General of California EDWARD C. DUMONT Solicitor General GERALD A. ENGLER Chief Assistant Attorney General JULIE L. GARLAND Senior Assistant Attorney General AIMEE FEINBERG Deputy Solicitor General DANIEL ROGERS Supervising Deputy Attorney General ANTHONY DA SILVA* Deputy Attorney General STATE OF CALIFORNIA DEPARTMENT OF JUSTICE 600 West Broadway, Suite 1800 San Diego, CA 92101 Telephone: (619) 738-9143 [email protected] *Counsel of Record i QUESTION PRESENTED Whether the court of appeals exceeded the proper scope of federal habeas review by setting aside a state criminal sentence based on a putative federal due process right to specific performance of a plea agreement that was superseded and with- drawn, in accordance with state law, before the en- try of judgment. ii LIST OF PARTIES ii TABLE OF CONTENTS Page Petition for a Writ of Certiorari ............................... 1 Opinions and Judgments Below .............................. 1 Statement of Jurisdiction ......................................... 1 Statutory Provisions Involved .................................. 2 Statement ................................................................. 4 Reasons for Granting Certiorari ............................ 15 Conclusion ............................................................... 28 Appendix: Ninth Circuit Opinion Cuero v. Cate Case No. 12-55911 Filed June 30, 2016…………………………..1a-97a Ninth Circuit Order Denying Panel Rehearing and Rehearing En Banc Cuero v. Cate Case No. 12-55911 Filed March 8, 2017…………………………..98a-139a iii TABLE OF CONTENTS (continued) Page District Court Order Adopting the Findings and Conclusions of United States Magistrate Judge Cuero v. Cate Case No. 08cv2008-BTM (WMc) Filed April 25, 2012…………………………..140a-143a Report and Recommendation of United States Magistrate Judge Re: Denial Of Petition for Writ Of Habeas Corpus And Order Denying Evidentiary Hearing Cuero v. Cate Case No. 08cv2008-BTM (WMc) Filed March 25, 2011………….……………..144a-166a Superior Court of the State of California, San Diego County, Hearing Re: Motion to Amend Complaint People v. Cuero Case No. SCE 255082 Reporter’s Transcript February 2, 2006 …………………………..…167a-184a Court of Appeal, Fourth Appellate District, Opinion Denying Appeal People v. Cuero Case No. D048691 Filed March 21, 2007 ………………….……..185a-188a iv TABLE OF CONTENTS (continued) Page Superior Court of the State of California Order Denying Petition for Writ of Habeas Corpus In the Matter of the Application of Michael Daniel Cuero Case No. EHC 606 and SCE 255082 Filed October 2, 2007 ………………….…….189a-193a Court of Appeal, Fourth Appellate District Order Denying Petition for Writ of Habeas Corpus In re Michael Daniel Cuero on Habeas Corpus Case No. D052010 Filed March 6, 2008 ………………………….194a-199a California Supreme Court Order Denying Petition for Writ of Habeas Corpus In re Michael Daniel Cuero on Habeas Corpus Case No. S163101 Filed October 1, 2008………………………….200a v TABLE OF AUTHORITIES Page CASES Anders v. California 386 U.S. 738 (1967). ............................................... 9 Bradshaw v. Richey 546 U.S. 74 (2005) ................................................ 23 Buckley v. Terhune 441 F.3d 688 (9th Cir. 2006) ................................ 26 Davis v. Woodford 446 F.3d 957 (9th Cir. 2006) ................................ 26 Dunn v. Colleran 247 F.3d 450 (3d Cir. 2001).................................. 22 Estelle v. McGuire 502 U.S. 62 (1991) ................................................ 23 Glebe v. Frost 135 S. Ct. 429 (2014) ............................................ 17 Harrington v. Richter 562 U.S. 86 (2011) ................................................ 17 In re Falco 176 Cal. App. 3d 1161 (1986) ................................. 4 Lopez v. Smith 135 S. Ct. 1 (2014) .......................................... 17, 26 Mabry v. Johnson 467 U.S. 504 (1984) ...................................... passim vi TABLE OF AUTHORITIES (continued) Page Marshall v. Rodgers 133 S. Ct. 1446 (2013) .......................................... 26 McPherson v. Barksdale 640 F.2d 780 (6th Cir. 1981) ................................ 22 People v. Karaman 4 Cal. 4th 335 (1992) .............................................. 5 People v. Kim 193 Cal. App. 4th 1355 (2011) ............................... 4 People v. Superior Court (Romero) 13 Cal. 4th 497 (1996) ............................................ 5 People v. Valladoli 13 Cal. 4th 590 (1996) ............................................ 4 People v. Wende 25 Cal. 3d 43 (1979) ......................................... 9, 10 Puckett v. United States 556 U.S. 129 (2009) ........................................ 11, 24 Ricketts v. Adamson 483 U.S. 1 (1987) ...................................... 11, 24, 25 Santobello v. New York 404 U.S. 257 (1971) ...................................... passim White v. Woodall 134 S. Ct. 1697 (2014) .......................................... 21 vii TABLE OF AUTHORITIES (continued) Page Williams v. Taylor 529 U.S. 362 (2000) .............................................. 17 Wilson v. Corcoran 562 U.S. 1 (2010) .................................................. 24 Yarborough v. Alvarado 541 U.S. 652 (2004) .............................................. 21 STATUTES 28 U.S.C. § 1254(1) ................................................................. 2 § 2254 ................................................................ 2, 16 § 2254(a) ............................................................... 23 § 2254(d) ............................................................... 16 § 2254(d)(1) ................................................... passim Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) Pub. L. No. 104-132 110 Stat. 1214 (1996) ................................... passim California Penal Code § 667(e)(2)(A)(ii) ...................................................... 7 § 667(f)(1) ................................................................ 5 § 667.5(b) ................................................................ 7 § 668 ........................................................................ 7 § 859a ...................................................................... 6 § 969.5 ........................................................... passim viii TABLE OF AUTHORITIES (continued) Page California Penal Code (continued) § 969½. .................................................................... 4 § 969a ...................................................................... 4 § 1018 ...................................................................... 5 § 1191 .................................................................. 5, 6 § 1192.5 ......................................................... passim § 1192.7(c)(8) .......................................................... 7 COURT RULES United States Supreme Court Rule 35.3 .................... 1 1 PETITION FOR A WRIT OF CERTIORARI The Attorney General of California, on behalf of Scott Kernan, Secretary of the California Depart- ment of Corrections and Rehabilitation, respectfully petitions for a writ of certiorari to review the judg- ment of the United States Court of Appeals for the Ninth Circuit in this case.1 OPINIONS AND JUDGMENTS BELOW The opinion of the court of appeals (App. 1a- 97a) is reported at 827 F.3d 879 (9th Cir. 2016). The order denying rehearing and rehearing en banc and accompanying opinions (App. 98a-139a) are reported at 850 F.3d 1019 (9th Cir. 2017). The judgment of the district court (App. 140a-143a) and the magis- trate judge’s report and recommendation (App. 144a- 166a) are unpublished. The state superior court’s oral ruling (App. 167a-184a) and the state court of appeal’s affirmance on direct appeal (App. 185a- 188a) are unpublished. The state habeas corpus de- nials by the state superior court (App. 189a-193a), the state court of appeal (App. 194a-199a), and the state supreme court (App. 200a) are also un- published. STATEMENT OF JURISDICTION The judgment of the court of appeals was en- tered on June 30, 2016. App. 1a. The court of ap- peals denied the State’s petition for rehearing and rehearing en banc on March 8, 2017. App. 98a. The 1 Scott Kernan has succeeded Matthew Cate as Secre- tary of the California Department of Corrections and Rehabili- tation. Secretary Kernan is substituted as the named petitioner in this case in compliance with this Court’s Rule 35.3. 2 jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1). STATUTORY PROVISIONS INVOLVED 1. Section 2254 of Title 28 of the United States Code, as amended by the Antiterrorism and Effective Death Penalty Act of 1996, provides in per- tinent part: (a) The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a per- son in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Con- stitution or laws or treaties of the Unit- ed States. … (d) An application for a writ of ha- beas corpus on behalf of a person in cus- tody pursuant to the judgment of a State court shall not be granted with re- spect to any claim that was not adjudi- cated on the merits in State court pro- ceedings unless the adjudication of the
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