Michael Cuero v. Matthew Cate

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 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,…

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 conviction 1 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, Appendix A, ¶ 7a, and by Judge Ervin during the plea colloquy. Judge Er-vin then accepted Cuero’s plea and admis-. sions, 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 deter,mine punishment.” Boykin v. Alabama, 395 U.S. 238, 242 , 89 S.Ct. 1709 , 23 L.Ed.2d…

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 *897 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…