FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHAEL DANIEL CUERO,

Petitioner-Appellant,

v.

SCOTT KERNAN,

Respondent-Appellee.

No. 12-55911

D.C. No.

3:08-cv-02008-

BTM-WMC

ORDER

Filed January 28, 2019

Before: Diarmuid F. O’Scannlain, Barry G. Silverman,

and Kim McLane Wardlaw, Circuit Judges.

SUMMARY*

Habeas Corpus

The panel denied a petition for panel rehearing in a case 

in which, on remand from the Supreme Court, the panel 

affirmed the judgment of the district court in light of Kernan 

v. Cuero, 138 S. Ct. 4 (2017).

 * This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
2 CUERO V. KERNAN

Dissenting from the denial of the petition for panel 

rehearing, Judge Wardlaw wrote that she would have 

reversed in part and remanded with instructions to remand to 

the state court for any further consideration it deems 

necessary to remediate the violation of Cuero’s due process 

rights.

ORDER

Both Judges O’Scannlain and Silverman voted to deny 

Appellant’s petition for panel rehearing. Judge Wardlaw 

votes to grant the petition for panel rehearing. Accordingly, 

Appellant’s petition for panel rehearing is DENIED.

WARDLAW, Circuit Judge, dissenting:

With respect, I would grant Cuero’s petition for panel 

rehearing. I agree with Cuero’s reading of the Supreme 

Court’s opinion in Kernan v. Cuero, 138 S. Ct. 4 (2017), 

reh’g denied, 138 S. Ct. 724 (2018). On remand, I would 

have entered an order that reversed in part and remanded 

with instructions to remand to the state court for any further 

consideration it deems necessary to remediate the violation 

of Cuero’s due process rights. On the assumption that the 

parties likely will once again find themselves in state court, 

I write to clarify what the Supreme Court did and didn’t hold 

in Kernan.

1. First, the Supreme Court left intact our panel holding 

that the “State violated the Constitution when it moved to 

amend the complaint.” Id. at 8. In Cuero v. Cate, 827 F.3d 

879 (9th Cir. 2016), we found that Cuero entered a binding, 

judicially approved plea agreement that contained a charge 
CUERO V. KERNAN 3

bargain that resulted in an agreed maximum sentence of 

14 years and 4 months. We held that the State breached this 

agreement in violation of Cuero’s clearly established 

constitutional due process rights by seeking to amend the 

criminal complaint after the binding plea agreement was 

signed and judicially approved, resulting in an indeterminate 

64 years to life sentence. The Supreme Court did not disturb 

this holding and it remains the law of the case.

2. The Supreme Court reversed only our holding that 

specific performance of the plea agreement, i.e. an 

imposition of a 14 year, 4 month sentence as originally 

bargained, was the required remedy. It did so because it was 

“unable to find in Supreme Court precedent that ‘clearly 

established federal law’ demanding specific performance as 

a remedy.” Kernan, 138 S. Ct. at 8. As the Court wrote, 

“We decide no other issue in this case.” Id. at 9.

3. The Supreme Court rejected Cuero’s mootness 

argument based on his having been resentenced, stating 

“[r]eversal 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 7 (citation omitted). The Court then 

“remand[ed] the case for further proceedings consistent with 

this opinion.” Id. at 9.

Consistency with the Kernan Supreme Court decision 

requires that any resentencing that may occur must take into 

account the State’s breach of Cuero’s plea agreement in 

violation of Cuero’s due process rights. The state court 

remains free to remedy this breach by requiring specific 

performance of the original plea agreement. Kernan stands 

merely for the proposition that the state court is not required 

to do so by clearly established Supreme Court law.