FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIAN A. BUCKLEY, 

Petitioner-Appellee, No. 03-55045

v. D.C. No.

C.A. TERHUNE, Director of the  CV-00-02435-JSL

California Department of OPINION Corrections,

Respondent-Appellant. 

Appeal from the United States District Court

for the Central District of California

J. Spencer Letts, District Judge, Presiding

Argued and Submitted

September 27, 2005—San Francisco, California

Filed March 17, 2006

Before: Mary M. Schroeder, Chief Judge, Stephen Reinhardt,

Alex Kozinski, M. Margaret McKeown,

Kim McLane Wardlaw, Raymond C. Fisher,

Richard A. Paez, Marsha S. Berzon, Richard C. Tallman,

Jay S. Bybee, and Consuelo M. Callahan, Circuit Judges.

Opinion by Judge Reinhardt;

Dissent by Judge Callahan

2809
COUNSEL

Allen Bloom, San Diego, California, for the petitionerappellee. 

Bill Lockyer, Attorney General; Robert R. Anderson, Chief

Assistant Attorney General; Pamela C. Hamanaka, Senior

Assistant Attorney General; Kenneth C. Byrne, Supervising

Deputy Attorney General; Noah P. Hill, Deputy Attorney

General; Los Angeles, California, for the respondentappellant. 

OPINION

REINHARDT, Circuit Judge: 

The law regarding plea agreements entered into in state

court is well-established. They must be construed in accorBUCKLEY v. TERHUNE 2813
dance with state law. In California, plea agreements are construed in the same manner as all other contracts. In this case,

however, the California courts failed to do so and, as a result,

Brian Buckley might have remained in prison for life instead

of for the fifteen years for which he bargained. We are

required to ensure that his constitutional rights are not so violated, and that the bargain he entered into with the state is

honored. 

The state appeals the district court’s order granting Buckley’s petition for a writ of habeas corpus and directing that he

be released from prison because he had already served the full

fifteen years. The district court ruled that the state court’s

finding that Buckley “well knew” that his sentence for second

degree murder was fifteen years to life was both contrary to

clearly established federal law in violation of 28 U.S.C.

§ 2254(d)(1) and an unreasonable determination of the facts

in violation of § 2254(d)(2). In accordance with the district

court’s order, Buckley has now been released. We affirm the

judgment of the district court because, under § 2254(d)(1), the

state court’s failure to interpret Buckley’s plea agreement

according to California contract law resulted in a decision that

was contrary to clearly established Supreme Court law as set

forth in Santobello v. New York, 404 U.S. 257 (1971), and

Ricketts v. Adamson, 483 U.S. 1 (1987).

FACTUAL AND PROCEDURAL BACKGROUND

On November 12, 1987, Buckley was charged with burglary, robbery and first degree murder in Ventura County

Superior Court. The charges arose from allegations that Buckley and two others, Curtis Fauber and Christopher Caldwell,

robbed and killed Thomas Urell in his home in July 1986. 

On December 15, 1987, Donald Glynn, the deputy district

attorney assigned to Buckley’s case, sent Buckley’s attorney

a letter offering a plea bargain. The letter stated that, in

exchange for Buckley’s sworn testimony describing Fauber

2814 BUCKLEY v. TERHUNE
and Caldwell’s participation in the Urell murder and in two

additional unrelated murders, Glynn would dismiss the robbery and burglary charges against Buckley and move the

court to declare the murder charge against him to be murder

in the second degree. The letter was silent as to the sentence

Buckley would receive. Glynn attached to the letter a typewritten felony disposition statement. That document contained the following relevant language: 

CONSEQUENCES OF PLEA (Defendant to initial)

My attorney has explained to me the direct and indirect consequences of this plea including the maximum possible sentence. I understand that the

following consequences could result from my plea:

I could be sentenced to the state prison for a maximum possible term of 15 year(s).

***

After I have served my prison term, I may be subject

to a maximum parole period of LIFE (In re Carabes,

144 Cal. App. 3d 927).1

(Emphasis added). On December 17, 1987, Buckley initialed

the paragraphs describing his agreed-upon sentence and

signed the statement. 

The district court found that at the time Buckley initialed

and signed the felony disposition statement, a separate section

of that document entitled “The District Attorney’s Position on

Sentence” was blank. At some point after December 17, 1987,

but before the change of plea hearing on January 4, 1988,

1The number “15” was handwritten. The word “LIFE” was not added

until the January 4, 1988, plea hearing. However, the question of Buckley’s parole term is not at issue here. 

BUCKLEY v. TERHUNE 2815
Glynn added a handwritten paragraph to that section: “At the

time of sentencing the people will move the court to declare

the murder to be murder in the second degree, with a maximum term of 15 years to life.” (Emphasis added). Buckley did

not initial the paragraph, and there is no evidence that he saw

it before sentencing. 

At the change of plea hearing, Glynn and Buckley engaged

in the following colloquy:

Q: And has your attorney explained all of the consequences of your plea to this charge?

A: Yes.

Q: Do you understand that for second degree murder you could be sentenced to state prison for a maximum possible term of fifteen years?

A: Yes.

Q: And do you understand that after serving a

prison term you’ll be subject to a parole period —

I’m sorry, your Honor, does the Court know the

parole period for second degree murder? I didn’t

enter that in the document.

The Court: Yes, it’s — the possibility is parole for

life.

Q: All right. I’ve entered this into the document.

You could be subject to a parole period of life. And

you could also be ordered to pay a fine of not less

than a hundred dollars nor more than $10,000. Do

you understand that?

A: Yes.

2816 BUCKLEY v. TERHUNE
*** 

Q: Now as I stated before and it’s also contained

in this Felony Disposition form, that at the time of

sentencing the people will ask the Court to declare

the murder to be murder in the second degree with

a maximum term of fifteen years to life. And the People’s reason for entering into that agreement are [sic]

contained in this document that’s attached to the Felony Disposition Statement.

I’d like to go into the terms of this agreement with

you. In order — or as your part of the agreement you

will agree to cooperate in the trials against Curtis

Fauber and Christopher Cogwell [sic], and that you

will testify in the Fauber case at all proceedings

regarding the murder of Thomas Urell, David

Church and Jack Dowdy, and testify truthfully

regarding whatever you know about those murders.

Do you understand that to be the situation?

A: Yes.

***

Q: I’m showing you the Felony Disposition form,

this yellow form here, that has some initials B.B.

against a number of the paragraphs. Also has the initials D.C.G. which are my initials against some of

the paragraphs. And at the end of the form I see the

date December 17, 1987 and your signature. Did you

sign this document on that date?

A: Yes.

Q: And did you sign this document because you

read each of the paragraphs that you have initialed

BUCKLEY v. TERHUNE 2817
and you understand what’s contained in these paragraphs?

A: Yes. 

(Emphasis added). The December 15 letter and the felony disposition statement were entered into evidence as constituting

the plea agreement, and the court accepted and entered Buckley’s guilty plea. 

On January 7, 1988, Buckley testified on behalf of the prosecution at the guilt phase of Fauber’s trial. On crossexamination, Buckley stated that he had been given a sentence

of “fifteen years to life” in exchange for his testimony. On

January 22, 1988, Buckley testified for the prosecution at a

preliminary hearing in Caldwell’s case. There, he acknowledged that his charged offense had been reduced to second

degree murder, although there was no discussion of his sentence. On February 9, 1988, Buckley testified at the penalty

phase of Fauber’s trial. On cross-examination, when asked by

defense counsel when he “expect[ed] to be released from prison” as a result of his testimony, Buckley responded, “seven

and a half years.”

2

Buckley’s sentencing hearing took place on March 1, 1988,

after his testimony in the Fauber and Caldwell cases. At the

hearing, Glynn informed the court that Buckley had “complied with the terms of the negotiated disposition.” The prosecutor moved the court to declare the murder charge against

Buckley to be murder in the second degree, and to dismiss the

remaining two counts. The court granted the motion, ordered

Buckley to pay $10,000 in restitution, and sentenced him to

2Buckley’s statement that he expected to be released from prison in

seven and a half years apparently reflected his erroneous belief that under

California law he would be released after he had served half of his sentence if he exhibited good behavior. See CAL. PENAL CODE § 3049. 

2818 BUCKLEY v. TERHUNE
a prison term of fifteen years to life and a parole term of life.

Buckley’s counsel did not object to the sentence.3

On May 13, 1996, approximately eight years after Buckley’s sentencing, he filed a petition for a writ of habeas corpus

in the Ventura County Superior Court. On September 10,

1996, the court, in a two-page order, denied Buckley’s petition: 

The court finds that with the exception of one

statement in the negotiated disposition statement . . .

and a reference at the time of the taking of the plea

on January 4, 1988, . . . the records demonstrate that

the advisement was that the sentence would be 15

years to life as provided by law, and that the petitioner well knew this . . . . During the taking of the

plea on January 4, 1988, [ ] petitioner was expressly

advised that the maximum term of imprisonment

was 15 years to life . . . . Any ambiguity concerning

petitioner’s understanding of the sentence he was to

receive is put to rest by petitioner’s own statement

found in the transcript of January 7, 1988, during

petitioner’s testimony at the trial of Curtis Fauber

that he understood his term of imprisonment would

be 15 years to life . . . . 

3Despite the sentence of fifteen years to life in prison, Buckley contends

that he believed that the maximum prison sentence he faced was fifteen

years. According to Buckley, this belief resulted from the explicit terms

of the plea agreement he saw and initialed, the colloquy at the change of

plea hearing (in which he answered “yes” to the prosecutor’s question

whether he signed the plea agreement because he read and understood

each of the paragraphs that he initialed), and his understanding that “fifteen to life” was simply another way of saying “fifteen years in prison followed by a parole term of life.” There is no evidence that Buckley’s trial

counsel explained to him the difference between the two sentences.

According to Buckley, he did not discover that his sentence was actually

an indeterminate term of fifteen years to life until a 1995 administrative

hearing in prison. 

BUCKLEY v. TERHUNE 2819
*** 

Based upon the record provided by counsel in the

within matter, it is evident that petitioner well knew

that the term of imprisonment for which he was to be

committed to prison for the crime of second degree

murder was 15 years to life. In re Mosher [sic],

(1993) 6 Cal. 4th 342, 354-355, citing United States

vs. Timmreck (1979) 441 US 780, 784. 

(Emphasis added). Buckley next filed a habeas petition in the

California Court of Appeal, which issued a one-sentence summary denial. The California Supreme Court also issued a onesentence summary denial of a separate successive petition on

March 31, 1999. 

Buckley filed a petition for a writ of habeas corpus in district court on March 7, 2000.4

 The court referred the case to

a magistrate judge, who ordered an evidentiary hearing. The

magistrate judge issued a report that recommended granting

the writ. He found that, under 28 U.S.C. § 2254(d)(2), Buckley had demonstrated by clear and convincing evidence that

the state court’s factual finding regarding Buckley’s subjective understanding of his sentence was “incorrect and unreasonable.” Buckley v. Terhune, 266 F. Supp. 2d 1124, 1141

(C.D. Cal. 2002). Based on this finding, the magistrate judge

concluded that, under § 2254(d)(1), the trial court had failed

to “fulfill petitioner’s reasonable understanding of the plea

agreement,” which was contrary to clearly established federal

law holding that the state must fulfill a promise that induces

a guilty plea. Id. at 1142-43. The magistrate judge recom4The one-year statute of limitations applicable to Buckley’s federal

habeas petition was tolled from the time that he filed his initial state

habeas petition to thirty days after the California Supreme Court denied

his last petition. Carey v. Saffold, 536 U.S. 214, 221-23 (2002); Nino v.

Galaza, 183 F.3d 1003, 1006-07 (9th Cir. 1999). Thus, his federal petition

was timely, and the state does not contend otherwise. 

2820 BUCKLEY v. TERHUNE
mended specific performance of the plea agreement: a determinate sentence of fifteen years in prison. Id. at 1143. The

district court adopted the magistrate judge’s report and recommendation, id. at 1126, and the state appealed. 

We affirm, although our analysis differs from the district

court’s in some respects. 

STANDARD OF REVIEW

The district court’s decision to grant a 28 U.S.C. § 2254

habeas petition is reviewed de novo. See Leavitt v. Arave, 383

F.3d 809, 815 (9th Cir. 2004) (per curiam). We may affirm on

any ground supported by the record, even if it differs from the

rationale used by the district court. See Ramirez v. Castro,

365 F.3d 755, 762 (9th Cir. 2004). We review findings of fact

made by the district court for clear error. See Riley v. Payne,

352 F.3d 1313, 1317 (9th Cir. 2003). 

Under the Antiterrorism and Effective Death Penalty Act

(AEDPA), § 2254 habeas petitions “shall not be granted with

respect to any claim that was adjudicated on the merits in

State court proceedings unless the adjudication of the claim 

— (1) resulted in a decision that was contrary to, or involved

an unreasonable application of, clearly established Federal

law, as determined by the Supreme Court of the United

States; or (2) resulted in a decision that was based on an

unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C.

§ 2254(d); see also Lockyer v. Andrade, 538 U.S. 63, 70-73

(2003). Because Buckley filed his federal habeas petition after

AEDPA’s effective date, we review his petition under the

AEDPA standard. See Lindh v. Murphy, 521 U.S. 320, 326-27

(1997).

ANALYSIS

[1] Under Santobello v. New York, 404 U.S. 257, 261-62

(1971), a criminal defendant has a due process right to

BUCKLEY v. TERHUNE 2821
enforce the terms of his plea agreement. See also Brown v.

Poole, 337 F.3d 1155, 1159 (9th Cir. 2003) (“[The defendant’s] due process rights conferred by the federal constitution allow [him] to enforce the terms of the plea agreement.”).

In March 1999, when the California Supreme Court summarily denied Buckley’s petition for a writ of habeas corpus, it

had been clearly established federal law for more than a

decade that the construction and interpretation of state court

plea agreements “and the concomitant obligations flowing

therefrom are, within broad bounds of reasonableness, matters

of state law.” Ricketts v. Adamson, 483 U.S. 1, 6 n.3 (1987).

In California, “[a] negotiated plea agreement is a form of contract, and it is interpreted according to general contract principles,” People v. Shelton, 37 Cal. 4th 759, 767 (2006), and

“according to the same rules as other contracts,” People v.

Toscano, 124 Cal. App. 4th 340, 344 (2004) (cited with

approval in Shelton along with other California cases to same

effect dating back to 1982). Thus, under Adamson, California

courts are required to construe and interpret plea agreements

in accordance with state contract law. 

The analysis regarding the breach of Buckley’s plea agreement and the remedy to which he is entitled is not new to this

court. We previously applied similar principles and rules of

construction in Brown. In that case, on the basis of Santobello

and Adamson, we held that the state court, in failing to properly apply California contract law when interpreting a plea

agreement, had engaged in an objectively unreasonable application of clearly established federal law under § 2254(d)(1).

Brown, 337 F.3d at 1160 n.2. Here the California Superior

Court not only failed to apply state contract law properly but

failed to apply it at all. Its decision, therefore, is unquestionably contrary to clearly established federal law.5

5The “unreasonable application” provision of § 2254(d)(1) applies

where “the state court identifies the correct governing legal principle from

[the Supreme Court’s] decisions but unreasonably applies that principle to

the facts of the prisoner’s case.” Williams v. Taylor, 529 U.S. 362, 413

2822 BUCKLEY v. TERHUNE
I

[2] In California, “[a]ll contracts, whether public or private,

are to be interpreted by the same rules . . . .” CAL. CIV. CODE

§ 1635; see also Shelton, 37 Cal. 4th at 766-67; Toscano, 124

Cal. App. 4th at 344. A court must first look to the plain

meaning of the agreement’s language. CAL. CIV. CODE

§§ 1638, 1644. If the language in the contract is ambiguous,

“it must be interpreted in the sense in which the promisor

believed, at the time of making it, that the promisee understood it.” CAL. CIV. CODE § 1649. The inquiry considers not

the subjective belief of the promisor but, rather, the “objectively reasonable” expectation of the promisee. Bank of the

West v. Superior Court, 2 Cal. 4th 1254, 1265 (1992); Badie

v. Bank of Am., 67 Cal. App. 4th 779, 802 n.9 (1998)

(“Although the intent of the parties determines the meaning of

the contract, the relevant intent is objective — that is, the

objective intent as evidenced by the words of the instrument,

not a party’s subjective intent.” (internal quotation marks and

citation omitted)). Courts look to the “objective manifestations of the parties’ intent . . . .” Shelton, 37 Cal. 4th at 767.

If after this second inquiry the ambiguity remains, “the language of a contract should be interpreted most strongly

against the party who caused the uncertainty to exist.” CAL.

CIV. CODE § 1654; see also Toscano, 124 Cal. App. 4th at 345

(“ambiguities [in a plea agreement] are construed in favor of

the defendant”). 

(2000). In this case, however, the state court’s decision was “contrary to”

clearly established law because it failed to apply contract law analysis at

all: “[A] state court decision is contrary to our clearly established precedent if the state court applies a rule that contradicts the governing law set

forth in our cases . . . .” Andrade, 538 U.S. at 73 (internal quotation marks

omitted). Whether we classify this case as an “unreasonable application

of” or a “contrary to” case is irrelevant, however; the result would be the

same in either instance. 

BUCKLEY v. TERHUNE 2823
[3] Our first inquiry here is whether the Ventura County

Superior Court, in the last reasoned state court decision to

address Buckley’s plea agreement, treated the plea agreement

as a contract and applied the three-step approach to interpreting contracts required by California law. Initially, we note

that there is no mention of or reference to state contract law

in the Superior Court’s order denying Buckley’s habeas petition. Nor is there any discussion of the terms of the plea

agreement. Instead, the order addresses whether Buckley was

“expressly advised” by the trial court that his sentence was

fifteen years to life, and it cites only cases that consider an

“advisement” issue — that is, the issue of a trial court’s duty

to explain the charge and the sentence to a defendant. On the

basis of this analysis it concluded that Buckley knew what his

sentence would be.6 It is evident on the face of its decision

that the Superior Court failed to recognize that Buckley’s plea

agreement constituted a contract that under California law

must be construed like all other contracts. As a result, the

Superior Court failed to construe the terms of the plea agreement entirely. Accordingly, it failed to apply controlling state

law and reached a decision that both in its mode of analysis

and its result was contrary to clearly established Supreme

Court law. 

[4] Considering extrinsic evidence before examining the

language of the plea agreement and finding it ambiguous, as

the state court did in this case, is further evidence of its failure

6The Superior Court’s order principally cites In re Moser, 6 Cal. 4th

342, 354-55 (1993) (although it misspells the case name). Moser was a

state habeas case in which the defendant pled guilty “after receiving inadequate or erroneous advice from the trial court” with respect to the possible

consequences of his plea agreement. Id. at 345. As the Moser court held,

the issue in that case was “misadvisement,” not the breach of a plea agreement. Id. at 356. Similarly, United States v. Timmreck, 441 U.S. 780

(1979), which the Superior Court notes was cited in Moser, involves the

trial court’s failure to properly advise the defendant regarding his sentence

as required by Federal Rule of Criminal Procedure 11. Again in Timmreck,

as in Moser, the issue was not the breach of a plea agreement but a breach

of the trial court’s duty to inform the defendant of certain information. 

2824 BUCKLEY v. TERHUNE
to apply California contract law. CAL. CIV. CODE § 1638; Pope

v. Allen, 225 Cal. App. 2d 358, 364 (1964) (“The code provision permitting the showing of surrounding circumstances is

not applicable to every contract which comes before a court

for interpretation. It is applicable only where the language

used in the contract is doubtful, uncertain or ambiguous

. . . .”). Moreover, even if the Ventura County Superior Court

had first considered the plea agreement’s language and concluded that it was ambiguous, the court was not then permitted to use parol evidence to gauge the subjective

understanding of one of the contracting parties.7See Bank of

the West, 2 Cal. 4th at 1264 65; Beck v. Am. Health Group

Int’l, Inc., 211 Cal. App. 3d 1555, 1562 (1989) (“The objective intent . . . not the parties’ subjective intent, governs our

interpretation.”). In failing first to consider the language of

Buckley’s plea agreement and second to engage in an analysis

of the parties’ objective intent in entering that agreement, the

Superior Court plainly contravened California law. In light of

Santobello and Adamson, its decision falls squarely within the

ambit of § 2254(d)(1).

7The dissent, on the one hand, argues that the state court’s finding that

Buckley “well knew” that his sentence was fifteen years to life is entitled

to our deference under AEDPA. On the other hand, it concedes that the

state court failed both to examine the language of the plea agreement and

to apply an objective test to determine the mutual intent of the parties. Dissent at 2833 n.1 (“It is true that the California Superior Court did not specify that the plea agreement should be interpreted pursuant to general

contract terms. Nonetheless, the application of those terms would not have

changed that court’s factual determination.”). As to our dissenting colleagues’ first point, whether or not the state court’s determination of Buckley’s subjective state of mind was reasonable is wholly irrelevant. The fact

remains that the court failed to apply California contract law or to analyze

Buckley’s plea agreement in that light, or indeed in any light. Although

AEDPA does require deference to a state court’s factual findings, it does

not permit us, as the dissent suggests, to invent factual findings and then

ascribe them to the state court. Nor does it allow us to attribute a theory

of law to the state court that it failed to employ. 

BUCKLEY v. TERHUNE 2825
II

[5] Under AEDPA, even where the state court has committed constitutional error under § 2254(d), “habeas relief may

still be denied absent a showing of prejudice.” Medina v.

Hornung, 386 F.3d 872, 877 (9th Cir. 2004). The relevant

inquiry in this case is whether the state court’s error, which

resulted in its finding that the plea agreement mandated an

indeterminate prison sentence of fifteen years to life, had a

“substantial and injurious effect” on Buckley. Brecht v.

Abrahamson, 507 U.S. 619, 637 (1993). To answer this question we must determine what Buckley’s sentence would have

been had the California courts applied California contract law.

Where the state court fails to apply Supreme Court law (by

failing to apply California contract law) we must ourselves

conduct a de novo review of that question. 

[6] With respect to the first step in California contract analysis, it is clear that the language of Buckley’s plea agreement

was ambiguous. Critically, the plea agreement contained conflicting paragraphs describing the sentence to be given Buckley upon his plea of guilty to second degree murder. One

paragraph, which Buckley initialed, stated, “I could be sentenced to the state prison for a maximum possible term of 15

year(s) . . . . After I have served my prison term, I may be

subject to a maximum parole period of LIFE.” A different

paragraph was added later, after Buckley had already read and

initiated the agreement. That paragraph, initialed only by

Glynn, stated, “At the time of sentencing the people will

move the court to declare the murder to be murder in the second degree, with a maximum term of 15 years to life.”

8

 Even

8The district court found that the additional paragraph, which was handwritten, was not added until after Buckley saw and initialed the first paragraph. There appears to be no doubt from the record that the district court

is correct in this respect. However, the chronology is not important to our

outcome here: For purposes of this opinion we attach no weight to the fact

that the state’s version of the bargained-for sentence was incorporated in

2826 BUCKLEY v. TERHUNE
disregarding the timing of the addition of the added paragraph, there is only one reasonable conclusion one can draw

from the facts: The language of the plea agreement is ambiguous with respect to Buckley’s sentence. 

[7] After finding an ambiguity in the language of a contract, we must next attempt to resolve that uncertainty by

looking to the “objectively reasonable expectations” of the

promisee. See Bank of the West, 2 Cal. 4th at 1265; CAL. CIV.

CODE § 1649. This inquiry considers the disputed or ambiguous language in the context of the contract as a whole and of

the relevant surrounding circumstances. Nissel v. Certain

Underwriters at Lloyd’s of London, 62 Cal. App. 4th 1103,

1111-12 (1998); see also Bank of the West, 2 Cal. 4th at 1265

(“This is because language in a contract must be construed in

the context of that instrument as a whole, and in the circumstances of that case, and cannot be found to be ambiguous in

the abstract.” (emphasis and internal quotation marks omitted)). 

[8] Applying the second step of California contract analysis

in this case does not resolve the ambiguity created by the language of the plea agreement. Read in the context of the entire

agreement, the conflicting pronouncements regarding the

length of the sentence to be imposed offer no more clarity

than they do when read in the abstract. Furthermore, the plea

colloquy compounds, rather than cures, this ambiguity. At the

January 4, 1988, change of plea hearing, Glynn asked Buckley whether he understood his sentence to be “a maximum

possible term of fifteen years,” to which Buckley responded,

“Yes.” However, shortly thereafter, Glynn stated, “Now as I

the plea agreement after Buckley had reviewed and initialed it, and afford

that version equal significance to the paragraph on which Buckley relies,

although we note that were we to disregard the subsequently incorporated

material, there would be no inconsistency and no ambiguity at all, as

Buckley’s version of the sentence would be the only one set forth in the

plea agreement. 

BUCKLEY v. TERHUNE 2827
stated before and it’s also contained in this Felony Disposition

form, that at the time of sentencing the people will ask the

Court to declare the murder to be murder in the second degree

with a maximum term of fifteen years to life . . . . Do you

understand that to be the situation?” Again, Buckley

answered, “Yes.” Accordingly, the colloquy does no more

than replicate the ambiguity and, in turn, lead us to the final

step in our contractual analysis.9

[9] The proper interpretation of the plea agreement

becomes clear when we turn, as California law provides, to

§ 1654 of the California Civil Code: “In cases of uncertainty

not removed by the preceding rules, the language of a contract

should be interpreted most strongly against the party who

caused the uncertainty to exist.” There is no dispute that both

the December 15, 1987, letter from Glynn to Buckley’s counsel and the felony disposition statement, which together constituted the plea agreement, were drafted by the prosecutor’s

office. Thus, we are compelled by § 1654 to construe the

ambiguity in the plea agreement — whether Buckley was to

receive a determinate fifteen-year sentence or an indeterminate sentence of fifteen years to life — against the state. See

Toscano, 124 Cal. App. 4th at 345. Given the direct conflict

in the terms of the plea agreement, we must adopt the construction of the agreement that is most favorable to Buckley:

a maximum prison sentence of fifteen years. Because Buckley

instead received an indeterminate prison sentence of fifteen

years to life, it is evident that the state breached the plea

agreement and that the breach had a “substantial and injurious

effect” upon Buckley. Brecht, 507 U.S. at 637.

9That Buckley subsequently testified at his co-defendant’s trial and sentencing both that he had received a sentence of fifteen years to life and that

he expected to be released from prison in seven and one half years only

compounds the ambiguity further. Finally, given Buckley’s later expressed

misunderstanding of the relationship between his prison sentence and his

parole term, and the absence of any evidence that counsel explained to

him the nature of his sentence, his failure to object to the sentence when

it was ultimately imposed by no means serves to eliminate the ambiguity.

2828 BUCKLEY v. TERHUNE
III

[10] As the district court found, Buckley has two available

remedies at law for the breach of his plea agreement: withdrawal of his plea (i.e., rescission of the contract) and specific

performance. Buckley, 266 F. Supp. 2d at 1143; see also Santobello, 404 U.S. at 263 (positing the same two alternative

remedies). Where a plea agreement is breached, the purpose

of the remedy is, to the extent possible, to “repair the harm

caused by the breach.” Toscano, 124 Cal. App. 4th at 345 (citing People v. Kaanehe, 19 Cal. 3d 1, 14 (1977)). 

[11] In Buckley’s case, only one of the remedies appears to

us to be viable. Buckley has already fulfilled his obligations

under the plea agreement, including testifying on behalf of the

state against Fauber and Caldwell and serving his bargainedfor sentence.10 In so doing, he has “paid in a coin that the state

cannot refund.” Brown, 337 F.3d at 1161. Rescission of the

plea agreement cannot repair the harm caused by the state’s

breach. See Carter v. McCarthy, 806 F.2d 1373, 1377 (9th

Cir. 1986). That harm can best be addressed by holding the

state to its agreement and affording Buckley the benefit of his

bargain.11 Thus, Buckley is entitled to specific performance of

10Buckley was taken into custody on November 12, 1987, the date that

he was charged with burglary, robbery and first degree murder. The district court granted him habeas relief on December 6, 2002. He was thereafter released. 

11We express no view on what the proper remedy would be in a case

with other facts. As the California Supreme Court has held, the appropriate remedy in breach of plea agreement cases depends on the nature of the

breach, which party (e.g., the defendant, the prosecutor or the trial court)

has breached the agreement, and which party seeks enforcement of the

contract. Kaanehe, 19 Cal. 3d at 13. To that we would add, “and what has

transpired since the agreement was made.” Here, we hold only that in a

case in which the state has already received the benefit of the bargain, the

harm caused by its breach is generally best repaired by specific performance of the plea agreement, although a defendant may, if he so chooses,

elect instead to rescind the agreement and take his chances from there. 

BUCKLEY v. TERHUNE 2829
the plea agreement: a maximum prison sentence of fifteen

years. 

We arrive at our decision notwithstanding the state’s argument that a determinate fifteen year prison term is not a lawful sentence for second degree murder under California law.

Consistent or not with the state’s sentencing statute, that is the

bargain that California made in 1987. Buckley has fulfilled

his promises, and it is now too late for the state to argue that

it was not in a position to offer him a fifteen year sentence in

exchange. As we stated in Brown, addressing an identical

argument: “This may be a problem for the state, but not for

[the defendant].” 337 F.3d at 1161. 

IV

[12] Under Santobello, Buckley had a due process right to

enforce the provisions of his plea agreement. Under Adamson,

the state court was required to interpret Buckley’s plea agreement pursuant to California contract law; in not doing so, it

failed to apply clearly established federal law set forth by the

United States Supreme Court. 28 U.S.C. § 2254(d)(1). The

consequence was that Buckley was sentenced to an indeterminate prison term of fifteen years to life when the bargained-for

sentence, to which he was constitutionally entitled, was a

maximum of fifteen years. Thus, the state court committed

constitutional error that had a substantial and injurious effect

on Buckley. He is entitled to habeas corpus relief. 

The district court’s judgment granting Buckley’s petition

for a writ of habeas corpus is AFFIRMED. 

CALLAHAN, Circuit Judge, with whom Tallman, Circuit

Judge, joins, dissenting: 

I respectfully dissent. The majority notes the standard for

relief set forth in the Antiterrorism and Effective Death Pen2830 BUCKLEY v. TERHUNE
alty Act (“AEDPA”), 28 U.S.C. § 2254, but then substitutes

its factual findings for those of the state court. Although the

majority professes to grant relief under § 2254(d)(1), holding

that the state court’s decision involved an unreasonable application of clearly established federal law, my reading of its

opinion is that it actually, and incorrectly, concludes that the

state court’s decision was based on an unreasonable determination of fact. See 28 U.S.C. § 2254(d)(2). 

The majority’s perspective rests on two premises. First, it

asserts that it was established federal law in 1999, that the

construction and interpretation of plea agreements were matters of state law and that in California a plea agreement was

interpreted according to the same rules as other contracts.

Second, the majority concludes that under California law, the

uncertainty in the plea agreement requires that the agreement

be construed against the state. 

I agree with the majority that the construction and interpretation of plea agreements are matters of state law, that in California plea agreements are interpreted similarly to other

contracts, and that here the plea agreement is ambiguous. I

also agree that the ambiguity in the plea agreement requires

that we look to the expectations of the promisee in the context

of the contract as a whole and the relevant surrounding circumstances. I part company with the majority on the conclusions we reach from examining the surrounding

circumstances. The majority finds that the surrounding circumstances do not resolve the ambiguity. AEDPA, however,

requires that we defer to the state court’s factual determination that Buckley “well knew” that he had bargained for a

sentence of 15 years to life unless that finding is not supported by substantial evidence. Taylor v. Maddox, 366 F.3d

992, 999 (9th Cir. 2004). Because I cannot say “that an appellate panel, applying the normal standard of appellate review,

could not reasonably conclude that the finding is supported by

the record,” see id. at 1000, I would deny Buckley’s petition

for a writ of habeas corpus. 

BUCKLEY v. TERHUNE 2831
In its most recent opinion concerning the interpretation of

plea agreements, the California Supreme Court, after reiterating that a plea agreement is interpreted according to general

contract principles, wrote:

“The fundamental goal of contractual interpretation

is to give effect to the mutual intention of the parties.

(Civ. Code, § 1636.) If contractual language is clear

and explicit, it governs. (Civ. Code, § 1638.) On the

other hand, ‘[i]f the terms of a promise are in any

respect ambiguous or uncertain, it must be interpreted in the sense in which the promisor believed,

at the time of making it, that the promisee understood it.’ (Id., § 1649; see AIU [Ins. Co. v. Superior

Court (1990) 51 Cal.3d 807,] 822 [274 Cal. Rptr.

820, 799 P.2d 1253].)” (Bank of the West v. Superior

Court (1992) 2 Cal.4th 1254, 1264-1265, 10 Cal.

Rptr. 2d 538, 833 P.2d 545.) “The mutual intention

to which the courts give effect is determined by

objective manifestations of the parties’ intent,

including the words used in the agreement, as well

as extrinsic evidence of such objective matters as the

surrounding circumstances under which the parties

negotiated or entered into the contract; the object,

nature and subject matter of the contract; and the

subsequent conduct of the parties. (Civ. Code,

§§ 1635-1656; Code Civ. Proc., 1859-1861, 1864;

[citations].)” (Morey v. Vannucci (1998) 64 Cal.

App. 4th 904, 912, 75 Cal. Rptr. 2d 573; see also

People v. Toscano, supra, at p. 345, 20 Cal. Rptr. 3d

923.)

People v. Shelton, ___ P.3d ___, 37 Cal. Rptr. 3d 354, 358

(Cal. 2006) (emphasis added) (alterations in original). 

The California Supreme Court proceeded to explain that in

resolving the ambiguous plea agreement before it, it would:

2832 BUCKLEY v. TERHUNE
consider the circumstances under which this term of

the plea agreement was made, and the matter to

which it relates (Civ. Code, § 1647) to determine the

sense in which the prosecutor and the trial court (the

promisors) believed, at the time of making it, that

defendant (the promisee) understood it (id., § 1649).

Id. The court further noted that one interpretation of the

agreement was “reinforced by the prosecutor’s remarks at the

sentencing hearing . . . .” Id. at 359. In reaching its conclusion, the court noted that it considered “the totality of the circumstances presented here.” Id.

Thus, under California law, a judicial determination of the

parties’ expectations in a plea agreement is not confined to

reviewing the four corners of the plea agreement. A plea

agreement is not like a contract between two private parties.

Rather, in a plea agreement, the prosecutor and the defendant

agree to make certain representations to the trial judge who

retains the authority to accept or reject those representations.

See Frankel v. Bd. of Dental Examiners, 46 Cal. App. 4th

534, 551 (Cal. Ct. App. 1996). Furthermore, a plea agreement

is often, as in this case, before the trial court on at least two

occasions at which various factors that have an influence on

the agreement and the parties’ expectations may be considered. Here, the trial court first considered the plea agreement

at the change-of-plea hearing, and subsequently the trial court

considered the provisions of the plea agreement when it sentenced Buckley. 

A review of the record in this case shows that the state

court reasonably determined that Buckley’s expectation was

that he would receive a 15-years-to-life sentence.1 As noted in

1

It is true that the California Superior Court did not specify that the plea

agreement should be interpreted pursuant to general contract terms. Nonetheless, the application of those terms would not have changed that court’s

factual determination. Moreover, the state court’s factual finding that

Buckley well knew that his bargained-for sentence was 15 years to life

resolved the ambiguity in the agreement. 

BUCKLEY v. TERHUNE 2833
the majority opinion, there is some question as to what language was in the plea agreement when Buckley signed it. The

record, however, shows that when Buckley testified in Fauber’s trial in January 1988, he stated that he had pled guilty

to second-degree murder, with a penalty of 15 years to life,

in return for the District Attorney not prosecuting him with

murder in the first degree, which carried a penalty of 25 years

to life, and dropping the robbery and burglary charges. Moreover, at his subsequent sentencing hearing in March 1988, the

trial court sentenced Buckley to a prison term of 15 years to

life and a parole term of life. Buckley was represented by

counsel at the sentencing hearing and did not object to the

imposed sentence. Furthermore, the attorney who represented

Buckley in 1988 subsequently testified that he had no recollection of negotiating a determinant sentence of 15 years with

the District Attorney or discussing such a sentence with Buckley. It was not until 1996 that Buckley advanced the contention that his plea agreement was for 15 years. Perhaps

reasonable minds may differ on whether Buckley in 1988

knew that his plea agreement was for 15 years to life, but the

state court’s determination that he did is not “an unreasonable

determination of the facts in light of the evidence presented.”

See 28 U.S.C. § 2254(d)(2): see also Taylor, 366 F.3d at 1000

(stating that “it is not enough that we would reverse in similar

circumstances if this were an appeal from a district court decision;” instead, we must be convinced that the state court

“could not reasonably conclude that the finding is supported

by the record.”). 

Finally, I note that this factual determination is further bolstered by the State’s representation — not rebutted by the

majority or by Buckley — that the allegedly bargained-for

sentence of 15 years was illegal under California law.2 This

2For this reason, I also disagree with the majority’s holding that Buckley is entitled to specific performance of the plea agreement, as it interprets the agreement. Were I to otherwise agree with the majority, I would

vacate the sentence and give Buckley an opportunity to withdraw his plea;

2834 BUCKLEY v. TERHUNE
too, is part of the relevant surrounding circumstances that a

court may consider in determining the parties’ intent in entering into a plea agreement. There is nothing in the record to

suggest that the prosecutor intended or had any motive to

agree to such an illegal sentence. Similarly, there is nothing

in the record to suggest that the trial judge was not aware of

the statutory sentence for second degree murder or that he

intended to approve an illegal sentence. 

In this case, the state court — on the basis of the same evidence as Buckley presented in his federal habeas petition —

determined that Buckley “well knew that the term of imprisonment for which he was to be committed to prison for the

crime of second degree murder was 15 years to life.” Pursuant

to 28 U.S.C. § 2254(d)(2), this factual determination precludes federal habeas relief unless it is “unreasonable.” The

fact that the state court did not refer to contract law when

determining Buckley’s understanding of the plea agreement

does not make the state court’s factual determination unreasonable. Accordingly, I would vacate the district court’s grant

of Buckley’s petition for a writ of habeas corpus, and deny the

petition.

thus placing both sides back in the positions they were in prior to their

entry into the plea bargain. This is not to suggest that what has transpired

since 1988 would not have a substantial impact on the parties’ subsequent

actions. Rather, my concern is that a federal court should not order the

specific performance of a plea agreement in a state court that is illegal

under state law. 

BUCKLEY v. TERHUNE 2835