Buckley v. Terhune ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIAN A. BUCKLEY, 
Petitioner-Appellee, No. 03-55045
v.
 D.C. No.
CV-00-02435-JSL
C. A. TERHUNE, Director of the
CDC, OPINION
Respondent-Appellant.

Appeal from the United States District Court
for the Central District of California
J. Spencer Letts, District Judge, Presiding
Argued and Submitted
January 9, 2004—Pasadena, California
Filed January 25, 2005
Before: Stephen S. Trott, Johnnie B. Rawlinson, and
Carlos T. Bea, Circuit Judges.
Opinion by Judge Trott;
Dissent by Judge Bea
1075
BUCKLEY v. TERHUNE 1079
COUNSEL
Noah P. Hill, Deputy Attorney General, Los Angeles, Califor-
nia, for the respondent-appellant.
Allen Bloom, San Diego, California, for the petitioner-
appellee.
OPINION
TROTT, Circuit Judge:
C.A. Terhune, Director of the California Department of
Corrections, (“State”) appeals the district court’s grant of
Brian Buckley’s petition for a writ of habeas corpus. The
State’s appeal is timely, and we have jurisdiction under 28
U.S.C. § 2253. The district court did not afford the state
court’s determination of facts the appropriate level of defer-
ence. Accordingly, we reverse the judgment of the district
court because it resulted from a misapplication of the strict
standard of review mandated by the Antiterrorism and Effec-
tive Death Penalty Act (AEDPA) of 1996 (“AEDPA”).1
I
On November 27, 1987, Buckley was charged in Ventura
County, California with felony murder, robbery, and burglary.
See CAL. PENAL CODE §§ 187(a), 190.2(a), 211, 459. On
December 15, 1987, the prosecutor, Donald C. Glynn, wrote
Buckley a letter offering a plea bargain. The proposal contem-
plated that Buckley would testify against suspects Curtis Fau-
1
We note that the district court did not have the benefit in 2002 of the
Supreme Court’s guidance in Lockyer v. Andrade, 538 U.S. 63 (2003), or
Miller-El v. Cockrell, 537 U.S. 322 (2003), when it rendered its decision,
not to mention our opinion in Taylor v. Maddox, 366 F.3d 992 (9th Cir.
2004).
1080 BUCKLEY v. TERHUNE
ber and Christopher Caldwell as to three murders, but the
agreement did not specify the sentence to be imposed should
Buckley accept the offer. Attached to Glynn’s letter was a
document entitled “Felony Disposition Statement.”
According to the Felony Disposition Statement, Buckley
was to plead guilty to a violation of California Penal Code
section 187 (murder) on Count 1, and the prosecutor was to
recommend that the court declare the murder to be murder in
the second degree and that the remaining counts be dismissed
in the interests of justice. The agreement contained also the
following relevant paragraphs, which Buckley initialed:
F. CONSEQUENCES OF PLEA (Defendant to ini-
tial)
/BB/ My attorney has explained to me the direct
and indirect consequences of this plea includ-
ing the maximum possible sentence. I under-
stand that the following consequences could
result from my plea:
/BB/ I could be sentenced to the state prison for a
maximum possible term of 15 year(s).
***
/BB/ After I have served my prison term, I may be
subject to a maximum parole period of LIFE2
(In re Carabes, 144 Cal. App. 3d 927).
2
When Buckley signed the Felony Disposition Statement, the “maxi-
mum parole period” was blank. It is uncontested, however, that Buckley
was consistently informed that he could be subject to parole for life, and
that the prosecutor filled in this space with the word “LIFE” at the change
of plea hearing on January 4, 1988. Neither Buckley nor the state claim
Buckley’s parole period should be anything other than life.
BUCKLEY v. TERHUNE 1081
At some point in time before Buckley entered his plea of
guilty, the prosecutor added — and the prosecutor alone ini-
tialed — a handwritten paragraph to the Felony Disposition
Statement that stated:
/DCG/ At the time of sentencing the people will
move the court to declare the murder to be
murder in the second degree, with a maxi-
mum term of 15 years to life.
Neither Buckley nor his defense attorney, Willard Wiksell,
initialed this paragraph. On December 17, 1987, Buckley
signed the prosecutor’s December 15, 1987 letter and initialed
and signed the Felony Disposition Statement. At the change
of plea hearing on January 4, 1988, the prosecutor engaged
Buckley in the following colloquy:
Q: And has your attorney explained all of the con-
sequences of your plea to this charge?
A: Yes.
Q: Do you understand that for second degree mur-
der you could be sentenced to state prison for
a maximum possible term of 15 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.
1082 BUCKLEY v. TERHUNE
Q: (By Mr. Glynn:) All right. I’ve entered this into
the document.3 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.
***
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 15 years to
life. And the People’s reason for entering into
that plea agreement are contained in this docu-
ment that’s attached to the Felony Disposition
Statement [the December 15, 1987 letter].
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 tri-
als against Curtis Fauber and Christopher Cog-
well [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
3
At this point, it appears Glynn filled in the blank with the uncontested
word “LIFE.”
BUCKLEY v. TERHUNE 1083
B.B. against a number 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 ini-
tialed and you understand what’s contained in
these paragraphs?
A: Yes.
(emphasis added). The prosecutor then asked Buckley if he
agreed to testify as a witness for the State against two other
defendants, and Buckley responded, “Yes.”
The prosecutor’s letter and the Felony Disposition State-
ment were entered into evidence as the written plea bargain
agreement. The judge then accepted Buckley’s guilty plea to
Count 1 on the charge of murder. Sentencing was suspended
until after Buckley testified at the trials of Fauber and Cald-
well.
At some point on January 4, 1988, defense attorney Wiksell
signed the December 15, 1987 letter, and both he and prose-
cutor Glynn signed the Felony Disposition Statement, which
Buckley had already initialed and signed three weeks earlier.
At the sentencing hearing, Judge McGrath began by saying,
“It would be my intention to follow the recommendation.
That’s just an indication to counsel and is subject to change
if counsel changes my mind during the argument or evi-
dence.” The trial court ordered the probation report filed. The
prosecutor moved the court to declare Count 1 to be murder
in the second degree and to dismiss Counts 2 and 3. The court
granted both motions. The prosecutor then stated for the
1084 BUCKLEY v. TERHUNE
record that Buckley had complied with all the terms of the
plea agreement: “He has been a cooperative witness in all of
the phases of the Fauber trial and he has testified at the pre-
liminary hearing in the case against Christopher Caldwell.”
After a discussion about Buckley’s concerns for his safety, the
possible options for where to house him, and the nature of the
crime, the court sentenced Buckley:
The Court does impose the term prescribed by
law as 15 years to life. The Defendant is granted
presentence credits by the Court of 110 days actual
time, 55 days good time-work time, a total of 165
days.
The Defendant is ordered to pay a restitution fine of
$10,000 to the State Restitution Fund. The Court
finds and the Court requests that the clerk show on
the Abstract and Minutes that the Defendant’s life is
in danger in prison because of the testimony that he
gave against his co-defendant in this case . . . and
that the Court requests that the Department of Cor-
rections give Defendant protective custody status in
state prison and seriously consider him as a candi-
date for out-of-state placement.
***
This specific offense carries a parole term for the
rest of your natural life once you would be released
from the state prison facility.
If you should violate a term or condition of parole,
you would be placed back into prison for up to one
year for any single violation.
(emphasis added). The judge then asked Buckley, “Do you
understand that?” Buckley responded, “Yes.” No objection
was made on his behalf to the sentence as imposed.
BUCKLEY v. TERHUNE 1085
Eight years later, Buckley filed a petition for writ of habeas
corpus in the Superior Court of California, claiming that the
State had breached the plea agreement because Buckley had
agreed only to a determinate 15-year sentence, not the indeter-
minate sentence of 15 years to life the court imposed. At the
conclusion of the proceedings occasioned by that petition, the
Superior Court found “that with the exception of one state-
ment 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 peti-
tioner well knew this.” The court continued:
Any ambiguity concerning petitioner’s understand-
ing . . . is put to rest by petitioner’s own statement
. . . during petitioner’s testimony at the trial of Curtis
Fauber that he understood his term of imprisonment
would be 15 years to life. This is underscored by the
judge’s comments at the time the sentence was pro-
nounced on March 1, 1988 . . . .
In addition, the Superior Court took judicial notice of its own
records in Buckley’s case wherein Buckley indicated, just 33
days after he was sentenced, in his own hand, and without
quarrel, that his sentence was “15 years to life, plea bargain.”
The California Court of Appeal and the California Supreme
Court both summarily denied Buckley’s successive petitions.
Dissatisfied with this result, Buckley petitioned for a writ
of habeas corpus in the United States District Court for the
Central District of California. The court referred the case to
a magistrate judge and granted an evidentiary hearing. Fol-
lowing the hearing, the court adopted the magistrate’s report,
making findings of fact and ultimately holding that “to the
extent that the state court’s ruling is properly characterized as
a factual finding, it is an incorrect and unreasonable one, and
petitioner has met his burden of demonstrating by clear and
convincing evidence that it is erroneous.” Buckley v. Terhune,
1086 BUCKLEY v. TERHUNE
266 F. Supp. 2d 1124, 1141 (C.D. Cal. 2002) (citation omit-
ted). The court opined that “[t]he Superior Court’s findings
and conclusion rest on a flawed foundation. It lacked the ben-
efit of an evidentiary hearing during which it could have
developed the record regarding any discussions or advice
which occurred off the record.” Id. After considering evi-
dence, much of which without excuse Buckley did not present
to the state court, the district court ultimately found that
Buckley understood he would receive a 15-year determinate
sentence and granted the petition, ordering his release from
custody “upon the expiration of [his] 15 year sentence.” Id. at
1143-44.
II
A.
We review the district court’s decision to grant a 28 U.S.C.
§ 2254 habeas petition de novo, as we do issues of law —
including the proper application of the law to the facts. Nunes
v. Mueller, 350 F.3d 1045, 1051 (9th Cir. 2003). We review
findings of fact made by the district court for clear error. Id.
[1] Under the 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 evi-
dence presented in the State court proceeding.” 28 U.S.C.
§§ 2254(d)(1), (2) (emphasis added). Additionally,
§ 2254(e)(1) states: “a determination of a factual issue made
by a State court shall be presumed to be correct. The applicant
shall have the burden of rebutting the presumption of correct-
ness by clear and convincing evidence.” 28 U.S.C.
§ 2254(e)(1).
BUCKLEY v. TERHUNE 1087
B.
[2] When reviewing state convictions, the principles of
comity and federalism embodied in the relevant sections of
the controlling federal habeas statute militate against substi-
tuting our judgment for that of the state courts. As the
Supreme Court explained in Williams v. Taylor, 529 U.S. 362
(2000), § 2254(d)(1) “places a new constraint on the power of
a federal habeas court to grant a state prisoner’s application
for a writ of habeas corpus with respect to claims adjudicated
on the merits in state court.” Id. at 412. As we recently stated,
“[A] federal court may not second-guess a state court’s fact-
finding process unless, after review of the state-court record,
it determines that the state court was not merely wrong, but
actually unreasonable.” Taylor v. Maddox, 366 F.3d 992, 999
(9th Cir. 2004) (citing Lockyer v. Andrade, 538 U.S. 63, 75
(2003) (emphasis added); Torres v. Prunty, 223 F.3d 1103,
1107-08 (9th Cir. 2000) (same standard of unreasonableness
applies under subsections (d)(1) and (d)(2)).
[3] In Maddox, this circuit established a two-part analysis
under §§ 2254(d)(2) and (e)(1). First, federal courts must
undertake an “intrinsic review” of the state court’s factfinding
under the “unreasonable determination” clause of
§ 2254(d)(2). Id. at 1000. The intrinsic review requires federal
courts to examine the state court’s factfinding process, not its
findings. We noted that “intrinsic challenges to state-court
findings pursuant to the ‘unreasonable determination’ stan-
dard come in several flavors, each presenting its own peculiar
set of considerations.” Id. at 1000-01 (listing, e.g.: “where the
state court should have made a finding of fact but neglected
to do so[;] . . . where the state court does make factual find-
ings, but does so under a misapprehension as to the correct
legal standard[;] . . . and, where the fact-finding process itself
is defective”).
[4] “Once the state court’s factfinding process survives this
intrinsic review — or in those cases where petitioner does not
1088 BUCKLEY v. TERHUNE
raise an intrinsic challenge to the facts as found by the state
court — the state court’s findings are dressed in a presump-
tion of correctness,” as laid out in 28 U.S.C. § 2254(e)(1). Id.
at 1000. That presumption
helps steel them against any challenge based on
extrinsic evidence, i.e., evidence presented for the
first time in federal court. AEDPA spells out what
this presumption means: State-court fact-finding
may be overturned based on new evidence presented
for the first time in federal court only if such new
evidence amounts to clear and convincing proof that
the state-court finding is in error.
Id. (citation omitted).
III
In this appeal, we are presented with two competing ver-
sions of the facts — those found by the state court, on one
hand, and those found by the federal court, on the other.
According to the Ventura County Superior Court, Buckley
“well knew” that he pleaded guilty in exchange for an indeter-
minate sentence of 15 years to life, but according to the
United States District Court, the Superior Court’s finding “is
an incorrect and unreasonable one.” Buckley, 266 F. Supp. 2d
at 1141. The district court concluded that Buckley reasonably
“understood that he was receiving a sentence of no more than
15 years.” Id. at 1141.
As the competing findings demonstrate, the record regard-
ing the terms of the plea agreement in this case is subject to
dispute. Nevertheless, the issue we must first decide is not
which of these versions of the facts is correct, but whether the
district court correctly concluded that the Superior Court’s
version is an unreasonable one. See 28 U.S.C. §§ 2254(d)(2),
(e)(1). We focus on the decision of the Superior Court as the
“last reasoned decision,” because the California Court of
BUCKLEY v. TERHUNE 1089
Appeal and Supreme Court summarily denied Buckley’s suc-
cessive habeas petitions without comment. See Ylst v. Nunne-
maker, 501 U.S. 797, 803-04 (1991).4
A.
Following the construct established in Maddox, first we
undertake an “intrinsic review” of the state’s factual finding
process. In order to do so with the precision required by the
statute and our controlling precedents, we ordered the parties
to provide us with the complete record of Buckley’s state
habeas proceedings in the Ventura County Superior Court —
which they did. We asked them also to give us their views on
the impact of Maddox in this case — which they have also
done.
What we find in the Superior Court record is as follows:
1. Petitioner Buckley’s petition for a writ of habeas corpus
dated March 28, 1996.
2. Five supporting evidentiary exhibits to his petition:
a. The felony complaint filed against the petitioner.
(Ex.#1)
b. The plea agreement negotiated in return for his
testimony against Curtis Fauber and Christopher
A. Caldwell. (Ex.#2)
4
Buckley asserts that the Ylst doctrine would not apply here because he
filed a new habeas petition at each state level as allowed under California
law, rather than appeals from the Superior Court’s decision, and he pre-
sented a new piece of evidence to the Court of Appeal and Supreme Court.
We find this distinction immaterial on the facts of this case because Buck-
ley asserted the same errors in his successive petitions, and the new evi-
dence presented by Buckley to the Court of Appeal and Supreme Court
was irrelevant to the formation of the plea agreement.
1090 BUCKLEY v. TERHUNE
c. The Superior Court felony disposition statement
memorializing Buckley’s plea of guilty and all
the required waivers. (Ex.#3)
d. A reporter’s transcript dated January 4, 1988, of
the entry of the plea of guilty to second degree
murder. (Ex.#4)
e. A reporter’s transcript dated March 1, 1987, of
Buckley’s sentence (without objection) to “the
term prescribed by law as 15 years to life.”
(Ex.#5)
3. Respondent district attorney Bradbury’s return to Buck-
ley’s petition dated July 12, 1996, supplemented by an
addendum dated July 15, 1996.
4. A supporting evidentiary declaration by the prosecutor,
Donald C. Glynn.
5. Exhibit A to the Glynn declaration consisting of a report-
er’s transcript dated January 7, 1988, of Buckley’s guilt-
phase testimony against Curtis Fauber indicating that his
anticipated sentence was “15 years to life.”
6. A Superior Court order dated July 22, 1996, directing
Buckley to file a traverse, or an answer, to the prosecu-
tor’s return, and ordering a specific response to the “fac-
tual allegations set forth in paragraph 12, paragraph 13,
and paragraph 14, wherein it appears that petitioner was
well aware at the time of the entry of his plea to second
degree murder that the punishment was 15 years to life.”
7. Buckley’s responsive traverse dated August 21, 1996.
8. The Superior Court’s order dated September 10, 1996,
denying the petition.
BUCKLEY v. TERHUNE 1091
9. Court Exhibit #1 to its September 10, 1996, order consist-
ing of Buckley’s petition for writ of appeal “from his
conviction dated April 3, 1988, and indicating in his own
hand that his sentence was “15 years to life, plea bar-
gain.”
[5] What we do not find in the record — or in Buckley’s
counsel’s response to our order to produce the record — is
any indication that Buckley asked for or was denied either: (1)
an opportunity to develop or to offer additional evidence; (2)
an opportunity orally to argue in support of his petition; or (3)
an evidentiary hearing in open court on any of the issues.
What we deduce instead is that Buckley was content to have
the claims in his petition decided upon the extensive written
evidentiary record and argument submitted by both sides,
which is exactly what transpired. The final document in Buck-
ley’s response to our order is a declaration of mailing to the
parties of the Superior Court’s order denying writ of habeas
corpus, dated September 10, 1996. Conspicuous by its
absence is any request by Buckley for reconsideration.
Here, we take note of what appears to be an omission of
important information in Buckley’s evidentiary submission to
the Superior Court. Buckley’s evidentiary Exhibit #4 is a copy
of a transcript of Buckley’s arraignment on Monday, January
4, 1988, and the entry of his guilty plea. The pages of the
reporter’s transcript itself are consecutively numbered 1-13.
However, page 12 was omitted from this Exhibit and does not
appear in the parties’ recent submissions to this court. Why is
this important? Because, as pointed out by the prosecutor in
1996 in his return, the missing page 12 of Buckley’s Exhibit
#4 quotes Buckley’s counsel’s description of Buckley’s sen-
tence during his arraignment and in his client’s presence as
“15 to life.” Here is the exchange, which Buckley apparently
did not include in his exhibit to the Superior Court:
The Court: I’m leaving this department [at] the end
of January. If you gentlemen like and the defendant
1092 BUCKLEY v. TERHUNE
requests, I’ll keep the case for sentencing, or you can
keep this case here. . . . But whatever you want to do
is fine with me.
[Buckley’s counsel responded:] Why don’t you —
normally wouldn’t make any difference because it’s
a second degree murder and you can only sen-
tence him to 15 to life.
(emphasis added).
[6] From the foregoing, we conclude that petitioner had a
full, fair, and complete opportunity to present evidence to the
state courts — of which he took full advantage. He had an
evidentiary hearing, albeit on the written record. In his peti-
tion to the Superior Court, he included five evidentiary exhib-
its. The Superior Court judge referred to the evidence on the
record before him, asked for and received a response to cer-
tain factual assertions and submissions by the respondent, and
then made a reasoned decision “in light of the evidence pres-
ented.” 28 U.S.C. § 2254(d)(2). Thus, the state court’s fact-
finding process easily survives an intrinsic review. We find no
defect whatsoever in the process invoked by Buckley and
employed by the Superior Court.
[7] The error made here by the district court was in believ-
ing — on the basis of evidence not submitted to the Superior
Court — that because the Superior Court did not conduct an
open evidentiary hearing and solicit additional input, its pro-
cess was flawed and its findings did not need to be honored
in federal court. To reiterate, the magistrate judge’s report and
recommendation says, “[t]he Superior Court’s findings and
conclusions rest on a flawed foundation. It lacked the benefit
of an evidentiary hearing during which it could have devel-
oped the record regarding any discussions or advice which
occurred off the record.” Buckley, 266 F. Supp. 2d at 1141.
He continued, “to the extent that the state court’s ruling is
properly characterized as a factual finding, it is an incorrect
BUCKLEY v. TERHUNE 1093
and unreasonable one, and petitioner has met his burden of
demonstrating by clear and convincing evidence that it is
erroneous.” Id. (citation omitted).
[8] In Mendiola v. Schomig, 224 F.3d 589, 592-93 (7th Cir.
2000), the Seventh Circuit noted the differences between pre-
AEDPA § 2254(d) and the current § 2254(e)(1). Id. The latter
“does not require findings to be based on evidentiary hear-
ings.” Id. Under this rationale, the magistrate in this case
erred by determining that because the California Superior
Court’s finding was not based on a separate evidentiary hear-
ing it is not entitled to deference under the AEDPA. As the
Mendiola court noted, “[i]f a state court’s findings rest on thin
air, the petitioner will have little difficulty satisfying the stan-
dards for relief under § 2254. But if the state court’s finding
is supported by the record, even though not by a ‘hearing on
the merits of the factual issue’, then it is presumed to be cor-
rect.” Id. (quoting 28 U.S.C. § 2254(d) (1994) (pre-AEDPA)).
We agree with our sister circuit: we do not read either the
AEDPA or Maddox as mandating an in-court evidentiary
hearing under all circumstances. The question is whether the
factfinding process was fatally defective. Moreover, petitioner
challenged the state court’s finding in his federal habeas peti-
tion on the basis that it was simply wrong, not on the basis
that the factfinding process was intrinsically flawed.
We note here that all the “new” evidence petitioner brought
to the district court’s attention was not evidence that was
unknown or unavailable to the petitioner in state court — to
the contrary. In this respect, his federal presentation to the dis-
trict court runs afoul of the requirement that before he can
obtain federal habeas relief, he must have fairly presented his
claims to the state court. As the Supreme Court said in Keeney
v. Tamayo-Reyes, 504 U.S. 1 (1992):
It is hardly a good use of scarce judicial resources
to duplicate factfinding in federal court merely
because a petitioner has negligently failed to take
1094 BUCKLEY v. TERHUNE
advantage of opportunities in state-court proceed-
ings.
Furthermore, ensuring that full factual develop-
ment of a claim takes place in state court channels
the resolution of the claim to the most appropriate
forum. The state court is the appropriate forum for
resolution of factual issues in the first instance, and
creating incentives for the deferral of factfinding to
later federal-court proceedings can only degrade the
accuracy and efficiency of judicial proceedings. This
is fully consistent with, and gives meaning to, the
requirement of exhaustion. . . . Exhaustion means
more than notice. In requiring exhaustion of a fed-
eral claim in state court, Congress surely meant that
exhaustion be serious and meaningful.
***
The purpose of exhaustion is not to create a proce-
dural hurdle on the path to federal habeas court, but
to channel claims into an appropriate forum, where
meritorious claims may be vindicated and unfounded
litigation obviated before resort to federal court.
Comity concerns dictate that the requirement of
exhaustion is not satisfied by the mere statement of
a federal claim in state court.
Id. at 9-10.
In this connection, § 2254(e)(2) provides as follows:
If the applicant has failed to develop the factual
basis of a claim in state court proceedings, the court
shall not hold an evidentiary hearing on the claim
unless [petitioner] shows that —
(A) the claim relies on —
BUCKLEY v. TERHUNE 1095
(i) a new rule of constitutional law . . . ;
or
(ii) a factual predicate that could not have
been previously discovered through
the exercise of due diligence; and
(B) the facts underlying the claim would be suffi-
cient to establish by clear and convincing evi-
dence that but for constitutional error, no
reasonable factfinder would have found [peti-
tioner] guilty of the underlying offense.
28 U.S.C. § 2254(e)(2).
In Williams v. Taylor, 529 U.S. 420 (2000), the Supreme
Court interpreted this statute as follows in connection with a
petitioner’s responsibility fully to develop the record in state
court:
For state courts to have their rightful opportunity to
adjudicate federal rights, the prisoner must be dili-
gent in developing the record and presenting, if pos-
sible, all claims of constitutional error. If the
prisoner fails to do so, himself or herself contribut-
ing to the absence of a full and fair adjudication in
state court, § 2254(e)(2) prohibits an evidentiary
hearing to develop the relevant claims in federal
court, unless the statute’s other stringent require-
ments are met. Federal courts sitting in habeas are
not an alternative forum for trying facts and issues
which a prisoner made insufficient effort to pursue
in state proceedings. Yet comity is not served by
saying a prisoner “has failed to develop the factual
basis of a claim” where he was unable to develop his
claim in state court despite diligent effort. In that cir-
cumstance, an evidentiary hearing is not barred by
§ 2254(e)(2).
1096 BUCKLEY v. TERHUNE
Id. at 437.
When the “stringent requirements” of § 2254(e)(2) are cast
in terms of a petitioner’s dispute with his sentence, and
whether the facts underlying his claim would have been such
that no reasonable factfinder could have found against him,
we are persuaded that he fails to satisfy this test — as will
become evident from our extrinsic review of the factfinding
process. See infra Part III B. See also Baja v. Ducharme, 187
F.3d 1075, 1079 (9th Cir. 1999) (a petitioners indefensible
failure in state court to advance evidence in support of his
federal claim bars him pursuant to § 2254(e) from an evidenti-
ary hearing in federal court).
[9] State courts cannot be expected, sua sponte, to order
testimonial evidentiary hearings when they are not requested
or when the need for such a hearing is not apparent from the
material submitted. Where, as here, the state court considered
all of the evidence submitted by the petitioner and did not
refuse the petitioner the opportunity to develop those claims
— indeed, the court solicited more factual input and argument
— we cannot conclude that the decision “was based on an
unreasonable determination of the facts in light of the evi-
dence presented in the State court proceeding.” 28 U.S.C.
§ 2254(d)(2) (emphasis added).
B.
[10] Having concluded that the state court employed a
proper process in determining the facts, Maddox next instructs
us to undertake an “extrinsic review” under 28 U.S.C.
§ 2254(e)(1) of the state’s factfinding process. In this setting,
the AEDPA “steels” the state court findings with a presump-
tion of correctness. Maddox, 366 F.3d at 1000. “[The] pre-
sumption means: State-court fact-finding may be overturned
based on new evidence presented for the first time in federal
court only if such new evidence amounts to clear and con-
BUCKLEY v. TERHUNE 1097
vincing proof that the state-court finding is in error.” Id. (cita-
tion omitted).
[11] As noted above, contradictory statements regarding
petitioner’s sentence appear in the Superior Court record.
Nonetheless, that record contains evidence and information
sufficient to support the Superior Court’s conclusion. As we
have explained, during his testimony against Curtis Fauber,
Buckley himself contemporaneously described his expected
sentence, in return for his cooperation, to be the standard term
of “15 years to life,” as did his own attorney at the time of his
plea. Moreover, Buckley repeated this understanding shortly
after his sentence in his petition for writ of appeal: “15 years
to life, plea bargain.” Given this evidence, we find it impossi-
ble to say that the Superior Court’s findings of fact as to
Buckley’s contemporaneous understanding and the nature of
the plea bargain to amount to an “unreasonable determination
of the facts in light of the evidence presented in the state court
proceeding.” 28 U.S.C. § 2254(d)(2).
Petitioner relies heavily on the alleged failure of the Supe-
rior Court to consider Buckley’s testimony during the penalty
phase of his co-defendant’s trial. When asked during that trial
when he believed he would be released from prison, Buckley
replied, “Seven and a half years.” However, Buckley did not
present this evidence to the Superior Court. Moreover, this
evidence is contradicted by his testimony during the guilt
phase of that trial, where he stated that he understood his sen-
tence to be “15 years to life.” Furthermore, his first statement
does not conclusively determine that he understood he was
facing a determinate 15-year sentence. As the State points out,
then extant California law regarding application of good time
credits to sentences of 15 years to life was unclear, so Buck-
ley could have understood he would serve only half of the
indeterminate sentence. See In re Oluwa, 207 Cal. App. 3d
439, 442 (1989) (holding that “persons serving sentences of
15 years to life for second degree murder are not eligible to
receive the 1-for-1 custody credits . . . but only 1-for-2,”
1098 BUCKLEY v. TERHUNE
which results in a minimum sentence of 10 years rather than
7-1/2 years).
At the federal evidentiary hearing, Buckley, his mother, his
attorney Willard Wiksell, prosecutor Donald Glynn, and
investigator Larry Troxel testified regarding Buckley’s plea
negotiation and agreement. Again, the various witnesses pre-
sented conflicting testimony. Wiksell, Buckley’s trial counsel
and a practiced defense attorney who had tried “hundreds” of
criminal cases prior to representing Buckley, testified that he
told his client he would receive the standard sentence for
second-degree murder, 15 years to life. This testimony finds
support in the missing page from Buckley’s Exhibit #4, where
Wiksell describes his client’s sentence during his arraignment
as “15 to life.” [Evid. Hearing Tr. 129]. As related above,
Buckley testified also that he thought he was getting the stan-
dard sentence. Troxel, who was not present during any part of
the actual plea negotiation, testified that the prosecutor repre-
sented Buckley’s sentence to him as a 15-year sentence.
[Evid. Hearing Tr. 15-17]. Buckley’s mother testified that she
met with Glynn, who explained to her that Buckley would
probably only serve seven and a half years. [Evid. Hearing Tr.
32]. She testified also that in a conversation in an elevator,
Troxel, who had no authority to participate in any part of the
plea bargain, told her Buckley was receiving a 15-year deter-
minate sentence. [Evid. Hearing Tr. 33].
This contradictory testimony does not amount to “clear and
convincing” evidence that the Superior Court’s finding was in
error. Here, we are faced with evidence that might support
either conclusion. Buckley’s evidence is anything but clear,
and not at all convincing. In cases such as this, we “may not
second-guess a state court’s fact-finding process unless, after
review of the state-court record, [we] determine[ ] that the
state court was not merely wrong, but actually unreasonable.”
Maddox, 366 F.3d at 999 (citations omitted) (emphasis
added). “To secure habeas relief, petitioner must demonstrate
that a state court’s finding of [fact] was incorrect by clear and
BUCKLEY v. TERHUNE 1099
convincing evidence, 28 U.S.C. § 2254(e)(1), and that the cor-
responding factual determination was ‘objectively unreason-
able’ in light of the record before the court.” Miller-El v.
Cockrell, 537 U.S. 322, 348 (2003).
[12] Of consequence in this analysis is the fact that we are
examining a state court’s construction of the terms of a plea
agreement. The Supreme Court addressed this situation in
Ricketts v. Adamson, 483 U.S. 1 (1987), a case that reversed
our holding regarding the provisions of a state court plea
agreement. In its opinion, the Court offered this authoritative
guidance:
[O]nce a state court has, within broad bounds of rea-
sonableness, determined that a breach of a plea
agreement results in certain consequences, a federal
habeas court must independently assess the effect of
those consequences on federal constitutional rights.
This independent assessment, however, proceeds
without second-guessing the finding of a breach and
is not a license to substitute a federal interpretation
of the terms of a plea agreement for a reasonable
state interpretation.
***
[T]he construction of the plea agreement and the
concomitant obligations flowing therefore are,
within broad bounds of reasonableness, matters of
state law, and we will not disturb [the state court’s]
reasonable disposition of those issues.
Id. at 5 n.3. In fine, Buckley has not demonstrated that the
Superior Court’s factual determination was objectively unrea-
sonable, and he has not carried his “burden of rebutting the
presumption of correctness by clear and convincing evi-
dence.” 28 U.S.C. § 2254(e)(1).
1100 BUCKLEY v. TERHUNE
CONCLUSION
[13] Because the state court’s determination of the facts
was not unreasonable under the AEDPA, we reverse the dis-
trict court’s decision granting Buckley’s § 2254 habeas peti-
tion.
REVERSED; PETITION DENIED.
BEA, Circuit Judge, dissenting:
Were I simply to disagree with the weight to be given the
evidence, or the conclusions drawn therefrom, I would not
further encumber the Federal Reports by writing a dissent. It
is because I see this case as being controlled by 28 U.S.C.
§ 2254(d)(1), whereas the majority apply section 2254(d)(2),
that I respectfully dissent. When judges’ criteria pass each
other without acknowledgment, like ships on a dark night, at
least one should blow a horn.
Next, were the relevant legal issues whether Buckley “un-
derstood” or “knew” or “believed” he was pleading to a “15
years to life” sentence rather than a “15 years maximum” sen-
tence, I would agree with the majority. There is sufficient evi-
dence in the record made before the Ventura County Superior
Court on the habeas hearing so that its finding that Buckley
“well knew” he was pleading to “15 years to life” was not
“unreasonable.” 28 U.S.C. § 2254(d)(2).1
But the proper focus of enquiry is not on section
2254(d)(2), but on section 2254(d)(1).2 At the time of the state
1
Similarly irrelevant is whether the district court should have held an
evidentiary hearing. I quite agree with the majority: it was not necessary
to develop the construction of the plea agreement.
2
Under 28 U.S.C. § 2254(d)(1), a habeas petition should be granted
where the state court opinion “resulted in a decision that was contrary to,
BUCKLEY v. TERHUNE 1101
habeas proceeding, clearly established Federal law, as deter-
mined by the Supreme Court, made the interpretation and
construction of a plea agreement a matter of state law.
Ricketts v. Adamson, 483 U.S. 1, 5 n.3 (1987) (holding that
“the construction of the plea agreement and the concomitant
obligations flowing therefrom are, within broad bounds of
reasonableness, matters of state law”). Under California law,
plea agreements are governed by the rules of contract law.
People v. Toscano, 20 Cal. Rptr. 3d 923, 926 (Cal. Ct. App.
2004) (“a plea agreement is interpreted according to the same
rules as other contracts”).
When the sentencing judge failed either to sentence Buck-
ley according to the parties’ intent as objectively manifested
in the agreement or to give Buckley an opportunity to with-
draw his plea, the sentence imposed violated Buckley’s con-
stitutional rights because it rendered his plea involuntary. The
breach of a plea agreement by failing to properly advise a
criminal defendant of his potential sentence is a violation of
due process. Santobello v. New York, 404 U.S. 257, 262
(1971). Where a defendant is misled as to the consequences
of his plea, it renders the plea involuntary. Williams v. Taylor,
529 U.S. 420, 431-33, 437-38 (2000).
By looking at the subjective understanding of one of the
parties to interpret the plea agreement, rather than looking at
the objective manifestation of the parties’ intent as California
law requires, the state court based its decision on irrelevant
evidence and reached an irrelevant determination of fact.
What a party to a contract “knew or did not know” is irrele-
vant where, as here, there are no claims of mistake, misrepre-
sentation or fraud.
or involved an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States.” Through-
out the majority opinion there is no analysis of whether the state court
decision violated clearly established federal law so as to fall within 28
U.S.C. § 2254(d)(1).
1102 BUCKLEY v. TERHUNE
Rather, the proper analysis under California law is: (1)
What were the terms of the plea bargain at the time the con-
tract was formed? (2) Was there a valid modification of those
terms? (3) Did the trial judge either (a) sentence the defendant
in accordance with the terms of the plea bargain, or (b) advise
the defendant that the judge would not do so and give the
defendant an opportunity to withdraw his guilty plea?
When analyzed according to the applicable California con-
tract law, the evidence shows that a contract was formed that
specified a determinate prison term of 15 years with the possi-
bility of life parole. Any attempted modification of that con-
tract to change the prison term to “15 to life” was invalid for
lack of new consideration.3 However, Buckley was not sen-
tenced according to the agreed upon terms in the plea bargain,
nor was he given an opportunity to withdraw his guilty plea.
Accordingly, I would affirm the district court’s grant of
habeas corpus, albeit not on the rationale used by the district
court.
I
We review the district court’s decision to grant a 28 U.S.C.
§ 2254 habeas petition de novo as we do issues of law, includ-
ing the proper application of the law to the facts. Nunes v.
Mueller, 350 F.3d 1045, 1051 (9th Cir. 2003). We review
findings of fact made by the district court for clear error. Id.
“We may affirm the district court’s decision on any ground
supported by the record, even if it differs from the district
court’s rationale.” Id.
II
Under both federal and California law, “[p]lea agreements
3
The phrase “15 to life” means an indeterminate prison term for a mini-
mum of 15 years to a maximum of life, subject to an early release at the
discretion of The Board of Prison Terms, California’s parole board.
BUCKLEY v. TERHUNE 1103
are contractual in nature and are measured by contract law
standards.” United States v. De La Fuente, 8 F.3d 1333, 1337
(9th Cir. 1993) (citation omitted). See also People v. Toscano,
20 Cal. Rptr. 3d at 926 (following Ninth Circuit law) (“a plea
agreement is interpreted according to the same rules as other
contracts”); People v. Knox, 20 Cal. Rptr. 3d 877, 880 (Cal.
Ct. App. 2004) (in construing the terms of a plea agreement,
courts should employ contract law standards and “should first
look to the specific language of the agreement”) (citation
omitted). Federal law requires that the plea bargain agreement
in this case be analyzed in terms of California contract law.
De La Fuente, 8 F.3d at 1337; see also, Ricketts, 483 U.S. at
5 n.3.
The subjective understanding of one of the parties, no mat-
ter how accurately delved, is irrelevant to the formation of a
contract, unless a mistake is alleged. 1 WITKIN SUM. OF CAL.
LAW § 365 (9th ed. 1990). Rather, where ambiguities as to the
parties’ objectively manifested intent exist, California law is
clear: the California Civil Code provisions for interpretation
of contract ambiguities must be followed and must be fol-
lowed in the order provided in the Civil Code. Bank of the
West v. Superior Court, 833 P.2d 545, 551-52 (Cal. 1992).
A. Plain Meaning
Under California contract law, one first looks at the plain
meaning of the agreement. CAL. CIV. CODE § 1644 (“The
words of a contract are to be understood in their ordinary and
popular sense, rather than according to their strict legal mean-
ing.”). Here, the written contract4 has two conflicting terms in
4
The plea offer letter dated December 15, 1987, together with the Fel-
ony Disposition Statement, constituted an offer which required acceptance
in a form certain: Buckley was to initial certain required paragraphs, sign
and date the offer. Once an offer is accepted in the form required, a con-
tract exists. See Palo Alto Town & Country Village, Inc. v. BBTC Co., 521
P.2d 1097, 1098-99 (Cal. 1974). True it is that the plea agreement is not
1104 BUCKLEY v. TERHUNE
it. In one paragraph, it states: “I could be sentenced to the
state prison for a maximum possible term of 15 years(s). . . .
After I have served my prison term, I may be subject to a
maximum parole period of Life.” These paragraphs were ini-
tialed by Buckley. But another paragraph states: “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.” This paragraph was handwritten,
unlike all other portions of the Felony Disposition Statement,
which were typewritten. It was initialed only by the prosecu-
tion, not by Buckley.5
Buckley submitted a declaration to the state court stating
that at the time he accepted the offer by signing the plea
agreement, this latter paragraph stating he could be sentenced
to “15 years to life” was not in the plea agreement. However,
his and his counsel’s signatures appear at the end of the docu-
ment, after the handwritten paragraph Buckley did not initial.
And the prosecutor testified at the district court hearing, that
it was his usual custom and practice to fill out all portions of
the plea agreement before sending it to the defense attorney,
effective as a basis for sentencing unless and until accepted by the sen-
tencing judge. Toscano, 20 Cal. Rptr. 3d at 926; People v. Rhoden, 75 Cal.
App. 4th 1346, 1354 (1999). But once the terms of the contract are ascer-
tained by rules of contract interpretation, and the plea agreement and plea
are accepted by the sentencing judge, the sentence must be based on that
agreement, regardless the prosecutor’s wish to change the terms of the
agreement. Toscano, 20 Cal. Rptr. 3d at 927. In addition, the verbal
exchange on January 4, 1988, could not have constituted a modification
to the agreement already formed on December 17, 1987, because the pros-
ecutor did not offer, nor did Buckley bargain for or accept, any new con-
sideration. See CAL. CIV. CODE § 1698.
5
The majority asserts that this paragraph was added to the Felony Dis-
position Statement before Buckley pleaded guilty. All the record shows is
that this paragraph was added at some point in time—but when it was
added is unknown. What we do know is that neither Buckley nor his attor-
ney initialed the paragraph, and Buckley agreed only that he had read each
paragraph he initialed, not this added paragraph.
BUCKLEY v. TERHUNE 1105
although he had no independent recollection of this plea
agreement. If one were to assume that the prosecutor followed
his usual practice in this case, a trier of fact could reasonably
find there are directly conflicting provisions in the plea agree-
ment. Thus, an ambiguity remains in the written contract.
B. Reasonable Expectation of Promisee
When an ambiguity remains in the wording of the contract
after application of the plain meaning rule in section 1644,
under Bank of the West, supra, the next step is to go to Cali-
fornia Civil Code section 1649, which states: “If the terms of
a promise are in any respect ambiguous or uncertain, it must
be interpreted in the sense in which the promisor [here, the
prosecutor] believed, at the time of making it, that the prom-
isee [here, Buckley] understood it.” Now the evidence from
the colloquy becomes relevant. At the change of plea hearing
on January 4, 1988, the prosecutor, reading from the plea
agreement, asked Buckley if he understood that he was to be
sentenced to “a maximum possible term of 15 years” with the
possibility of parole for life. Buckley responded: “Yes.”
Shortly thereafter, the prosecutor said: “Now as I stated
before [sic: the prosecutor had stated no such thing] 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 15 years to life.”6 Here again, the terms conflicted.
6
This exchange between the prosecutor and Buckley reminds one of
another famous exchange:
“When I use a word,” Humpty Dumpty said, in rather a scornful tone,
“it means just what I choose it to mean—neither more nor less.”
“The question is,” said Alice, “whether you can make words mean so
many different things.”
“The question is,” said Humpty Dumpty, “which is to be master—that’s
all.”
Lewis Carroll, Through the Looking Glass and What Alice Found There,
in THE ANNOTATED ALICE: THE DEFINITIVE EDITION 213 (Martin Gardner
ed., Norton Publishers) (2000).
1106 BUCKLEY v. TERHUNE
The prosecutor then asked Buckley if he agreed to testify
as a witness for the state against two other defendants and
Buckley responded: “Yes.” Buckley’s final answer in this
exchange cannot reasonably be interpreted to mean that he
was agreeing to a sentence of 15 years to life because he was
never directly asked that question.7 Hence, the ambiguity still
remains.
C. Contra Proferentem (Against the Drafter)
If the ambiguity is not resolved by the analysis set forth in
sections 1644 and 1649, then Bank of the West tells us one
must look to California Civil Code section 1654, which states:
“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.” See
also Bank of the West, 833 P.2d at 551-52; Toscano, 20 Cal.
Rptr. 3d at 926 (“ambiguities are construed in favor of the
defendant”). Here, finally, there is no ambiguity.
It is undisputed that the prosecutor drafted both the Decem-
ber 15, 1987 letter and the Felony Disposition Statement com-
prising the plea agreement. Accordingly, under section 1654,
the plea agreement must be construed in Buckley’s favor as
providing for a determinate sentence of 15 years maximum,
with life parole.
By failing to analyze the plea agreement under California
contract law, the state superior court failed to apply clearly
established federal law as set forth by the Supreme Court. 28
U.S.C. § 2254(d)(1); Ricketts v. Adamson, 483 U.S. at 5 n.3.
7
From the exchange between the prosecutor and Buckley, it is clear that
Buckley agreed to cooperate in the trials of two other defendants. The
prosecutor’s representations and his voir dire of Buckley in the presence
of the court were not for the purpose of forming a contract, but to assure
the court Buckley understood the terms of the agreement as required under
California law. CAL. PENAL CODE § 1192.5.
BUCKLEY v. TERHUNE 1107
“[W]hen a plea rests in any significant degree on a promise
or agreement of the prosecutor, so that it can be said to be part
of the inducement or consideration, such promise must be ful-
filled.” Santobello v. New York, 404 U.S. 257, 262 (1971).8
Here, because the plea agreement is ambiguous, it must be
construed in favor of Buckley and against the prosecution.
Therefore, even on the state court record alone, Buckley’s
interpretation must prevail, and his sentence is a determinate
sentence of 15 years, with the possibility of life parole.
In support of his interpretation, Buckley’s declaration sub-
mitted with his habeas petition showed that he thought the
terms “15 years with a parole period of life” and “15 years to
life” meant the same thing since the prosecutor himself used
8
Another, but not essential, way of looking at this is based on Taylor v.
Maddox, 366 F.3d 992, 1001 (9th Cir. 2004). Once the superior court
focused on what Buckley “understood, knew or believed” (his subjective
knowledge) rather than the objective manifestation of the parties’ intent as
documented in their written offer and acceptance, the superior court’s fact-
finding process was not only wrong, it was unreasonable. 28 U.S.C.
§ 2254(d)(2). Taylor v. Maddox did not limit our review of the state
court’s fact-finding process to whether the state court needed to hold a
hearing. The state court’s fact-finding process is also unreasonable under
28 U.S.C. § 2254(d)(2):
where the state court does make factual findings, but does so
under a misapprehension as to the correct legal standard. See,
e.g., Caliendo v. Warden, 2004 WL 720362, at *6 (9th Cir. Apr.
5, 2004); Fernandez v. Roe, 286 F.3d 1073, 1077 (9th Cir. 2002);
Wade v. Terhune, 202 F.3d 1190, 1197 (9th Cir. 2000). Obvi-
ously, where the state court’s legal error infects the fact-finding
process, the resulting factual determination will be unreasonable
and no presumption of correctness [under 28 U.S.C.
§ 2254(e)(1)] can attach to it.
Taylor, 366 F.3d at 1001. That is exactly what happened here. The state
court—and the majority—seek to interpret the terms of the plea agreement
by one party’s subjective understanding, rather than the objective manifes-
tation of the parties’ intent. Accordingly, the state court’s construction of
the plea agreement is not entitled to the special deference under 28 U.S.C.
§ 2254(e)(1) that the majority opinion gives to it.
1108 BUCKLEY v. TERHUNE
the terms interchangeably. The district court found Buckley’s
testimony credible because he had not initialed the handwrit-
ten paragraph and the prosecutor did not have a clear memory
of the events.
Although superfluous under our analysis because neither
mistake nor modification are properly before us, the district
court found Buckley’s belief that his maximum possible sen-
tence was a determinate term of fifteen years was reasonable
under the circumstances. The district court also found that
Buckley had no reason to suspect that the prosecutor had
attempted to change the terms of the plea agreement until a
probation officer finally informed Buckley that the term “15
to life” meant he could serve a life sentence in prison. This
finding is not clearly erroneous. See Nunes, 350 F.3d at 1052.
Once the prosecutor realized he had made a mistake, he had
several opportunities to remedy it. Upon realizing that he had
said “a maximum possible term of 15 years” when he meant
to say “15 to life,” the prosecutor could have corrected his
mistake and made certain that Buckley understood the differ-
ence before Buckley’s guilty plea was accepted and before
Buckley testified, at some risk to his life, at the trials of Fau-
ber and Caldwell. Having failed to correct his mistake in time,
and having taken advantage of Buckley’s reliance on the orig-
inal terms of the contract by obtaining the benefit of Buck-
ley’s testimony at the other trials, the state is now estopped
from arguing that the plea agreement should not be enforced.
See People v. Collins, 45 Cal. App. 4th 849, 864-865 (1996).
When a guilty plea is entered in exchange for specified bene-
fits, both parties must abide by the terms of the agreement. Id.
at 862-63; Santobello v. New York, 404 U.S. at 262 (1971).
III
The constitutional violation occurred when the sentencing
judge failed to either sentence Buckley in accordance with the
terms of his plea agreement, or give Buckley an opportunity
BUCKLEY v. TERHUNE 1109
to withdraw his plea. The judge was not free simply to alter
the terms of the plea agreement, even unwittingly.
At the March 1, 1988 sentencing hearing, the trial judge
said he intended to follow the recommendation in the plea
bargain. The prosecutor stated for the record that Buckley had
complied with all the terms of the plea agreement: “He has
been a cooperative witness in all of the phases of the Fauber
trial and he has testified at the preliminary hearing in the case
against Christopher Caldwell.” After a discussion about Buck-
ley’s concerns for his safety, the possible options for where
to house him, and the nature of the crime, the court sentenced
Buckley to “15 years to life” with “a parole term for the rest
of your natural life once you would be released from the state
prison facility.” No objection was made to the sentence as
imposed. Although the sentencing judge indicated an intent to
sentence Buckley in accordance with the plea agreement,
Buckley’s sentence of fifteen years to life does not correctly
reflect the terms of the plea agreement.
California law gives the defendant the ability to opt out of
the plea bargain if the court does not approve of the recom-
mended sentence. See CAL. PENAL CODE § 1192.5; Brown v.
Poole, 337 F.3d 1155, 1159 (9th Cir. 2003). This does not
render the terms of the plea bargain any less enforceable.
Brown, 337 F.3d at 1160-61.
When accepting a guilty plea the trial court must assure that
the defendant understands the consequences of his plea. See
CAL. PENAL CODE § 1192.5.9 Prior to sentencing, the judge
9
“Where the plea is accepted by the prosecuting attorney in open court
and is approved by the court, the defendant, except as otherwise provided
in this section, cannot be sentenced on the plea to a punishment more
severe than that specified in the plea and the court may not proceed as to
the plea other than as specified in the plea. If the court approves the plea,
it shall inform the defendant prior to the making of the plea that (1) its
approval is not binding, (2) it may, at the time set for hearing on the appli-
1110 BUCKLEY v. TERHUNE
should have made certain that Buckley either agreed to the
indeterminate term, or given Buckley the opportunity to with-
draw his guilty plea. The judge should have clarified the
terms of the plea agreement when the prosecutor first stated
that Buckley could be sentenced to a “maximum possible
term of 15 years,” with parole for life, and later said Buckley
could be sentenced to a “maximum term of 15 years to life.”
See Brown v. Poole, 337 F.3d at 1161 (holding that a prisoner
was entitled to specifically enforce an oral plea agreement for
seven and a half years, even though she would not ordinarily
be eligible for parole for ten years under the law). Even
though no one appeared to notice this switch in the terms of
the contract, “[t]hat the breach of agreement was inadvertent
does not lessen its impact.” Santobello, 404 U.S. at 262.
The failure properly to advise a criminal defendant of his
potential sentence is a violation of due process which renders
his plea involuntary. Williams, 529 U.S. at 431-33, 437-38;
Santobello, 404 U.S. at 262.
IV
Finally, the state argues that even if this court finds that the
plea agreement was breached, the appropriate remedy is to
remand the case back to state court so that Buckley can
change his plea to not guilty and stand trial for the offense.
Although such a remedy might commend itself where a simi-
lar error is discovered early in the proceedings, Buckley has
already testified for the state in the Fauber and Caldwell trials.
He has nothing with which to bargain for a new plea. Most
importantly, he has already served more than 15 years.
cation for probation or pronouncement of judgment, withdraw its approval
in the light of further consideration of the matter, and (3) in that case, the
defendant shall be permitted to withdraw his or her plea if he or she
desires to do so. The court shall also cause an inquiry to be made of the
defendant to satisfy itself that the plea is freely and voluntarily made, and
that there is a factual basis for the plea.” CAL. PENAL CODE § 1192.5.
BUCKLEY v. TERHUNE 1111
Accordingly, the only remedy that would give Buckley the
benefit of his bargain is specific performance. See Brown, 337
F.3d at 1161-62 (where Brown had already served the agreed
upon sentence, “Brown has met the terms of the agreed-upon
bargain, and paid in a coin that the state cannot refund.
Rescission of the contract is impossible under such circum-
stances; Brown cannot conceivably be returned to the status
quo ante. That leaves specific performance as the only viable
remedy.”). Accordingly, I dissent, and would affirm the grant
of habeas, to allow Buckley to remain at liberty.