FOR PUBLICATION



### UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

M ICHAEL D ANIEL C UERO

, Petitioner

- Appellant

,

v.

S COTT K ERNAN

, 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 C UERO V

. K ERNAN

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 o nce 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.” I d. 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 chargeC UERO V

. K ERNAN 3

bargain that resulted in an agreed maximum sentence of

14 years and 4 months. We held that the Stat e 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 t o 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 origin ally 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 o ther 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 t he 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

r equires 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 origin al plea agreement. Kernan stands merely for the proposition that the state court is not required to do so by clearly established Supreme Court law.