by Brandon Sample, Esq.

If you are a state prisoner hoping to find a sympathetic ear for a federal habeas petition, two recent decisions from the U.S. Supreme Court illustrate the challenges one must overcome.

Kernan v. Cuero

Michael Cuero sought federal habeas release, arguing that the state breached his plea agreement. His original plea agreement called for a maximum sentence of “14 years and 4 months.” However, after Cuero pleaded guilty, the state realized that he was a habitual offender. The state then sought, and received, permission to amend its complaint. The amended complaint increased Cuero’s sentence from a maximum of 14 years and 4 months to a minimum of 25 years.

Cuero opposed the amendment, arguing that he should be sentenced to no more than 14 years and 4 months per the original plea agreement. But to remedy the apparent breach of the plea agreement, the state court merely permitted Cuero to withdraw his first plea. He later pleaded guilty to the amended complaint and was sentenced to 25 years.

Cuero argued in state court that he was entitled to specific performance of the original plea agreement, rather than being forced to withdraw his plea. The California state courts disagreed.

He then sought federal habeas relief. Eventually, his case made it to the U.S. Court of Appeals for the Ninth Circuit. A deeply divided Ninth Circuit granted Cuero relief, holding that Cuero should have been afforded the remedy of specific performance for the state’s breach of the plea agreement instead of withdrawal of Cuero’s plea. The state sought review with the U.S. Supreme Court, and on November 6, 2017, the Supreme Court reversed the Ninth Circuit in a per curiam opinion.

The Supreme Court began its opinion by reiterating the deference federal courts must afford state habeas decisions in accordance with the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Under AEDPA, the Court explained, “a federal court may grant habeas relief to a state prisoner based on a claim adjudicated by a state court on the merits if the resulting decision is ‘contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.’” 28 U. S. C. §2254(d)(1).

According to the Court, the Ninth Circuit erred in its analysis because it is not “clearly established law” that specific performance—as opposed to withdrawal of a plea—was required.

As the Court wrote, “we still are unable to find in Supreme Court precedent that ‘clearly established federal law’ demanding specific performance as a remedy. To the contrary, no ‘holdin[g] of this Court’ requires the remedy of specific performance under the circumstances present here.”

The Ninth Circuit had primarily relied on the Supreme Court’s prior decision in Santobello v. New York, 404 U.S. 257 (1971), as the basis for its conclusion that specific performance was required. For instance, the Ninth Circuit pointed to Justice Douglas’ concurring opinion in Santobello, which stated that “a court ought to accord a defendant’s [remedial] preference considerable, if not controlling, weight inasmuch as the fundamental rights flouted by a prosecutor’s breach of a plea bargain are those of the defendant, not of the State.” Justice Douglas’ concurrence was viewed by the Ninth Circuit as controlling because it was joined by three other justices. Only seven justices participated in Santobello.

The Ninth Circuit also “pointed in support to its own Circuit precedent, a criminal procedure treatise, a decision of the Washington Supreme Court, and a law review article.” However, the Supreme Court found “several problems with the Ninth Circuit’s reasoning.” First, the Court explained, “‘fairminded jurists could disagree’ with the Ninth Circuit’s reading of Santobello.”

Second, the Court’s prior decision in Mabry v. Johnson, 467 U.S. 504 (1984), suggested that specific performance was not necessarily the preferred remedy for a breach of the plea agreement. In Mabry, the Court wrote, “Santobello expressly declined to hold that the Constitution compels specific performance of a broken prosecutorial promise as the remedy for such a plea ... permitting Santobello to replead was within the range of constitutionally appropriate remedies.”

Because “none of our prior decisions clearly entitles Cuero to the relief he seeks, the “state court’s decision could not be ‘contrary to’ any holding from this Court,’” the Court concluded. And in a final swipe at the Ninth Circuit, the Supreme Court reiterated that “circuit precedent does not constitute ‘clearly established Federal law, as determined by the Supreme Court’ ... [n]or, of course, do state-court decisions, treatises, or law review articles.”

Accordingly, the Supreme Court held the “Ninth Circuit erred when it held that ‘federal law’ as interpreted by this Court ‘clearly’ establishes that specific performance is constitutionally required here.” The case remanded to the Ninth Circuit for further proceedings. See: Kernan v. Cuero, 199 L. Ed. 2d (2017).

Dunn v. Madison

Shortly before Vernon Madison was scheduled to die for the shooting death of a police officer that occurred 30 years ago, the U.S. Court of Appeals for the Eleventh Circuit gave him a reprieve.

Madison’s lawyers argued that he was no longer competent to be executed because he had suffered “several recent strokes.” The state offered a psychologist who opined that Madison was not incompetent. Madison’s psychologist disagreed.

 A state judge declined to postpone Madison’s execution, holding that Madison failed to show that he “suffers from a mental illness which deprives [him] of the mental capacity to rationally understand that he is being executed as a punishment for a crime.” According to the state judge, Madison understood “that he is going to be executed because of the murder he committed[,] ... that the State is seeking retribution[,] and that he will die when he is executed.”

Madison then sought federal habeas relief. But his claim was rejected by a federal district judge. According to the district judge, the state court did not unreasonably apply federal law, nor did it “make an ‘unreasonable determination of the facts in light of the evidence’” under the AEDPA.

The Eleventh Circuit granted a certificate of appealability and reversed in a 2-1 decision. The Eleventh Circuit held that because Madison “has no memory of his capital offense,” it inescapably follows that he “does not rationally understand the connection between his crime and his execution.”

The U.S. Supreme Court granted certiorari and reversed. The Court explained that its previous decision in Panetti v. Quarterman, 551 U.S. 930 (2007), “addressed the question whether the Eighth Amendment forbids the execution of a prisoner who lacks ‘the mental capacity to understand that [he] is being executed as a punishment for a crime.’” Similarly, in Ford v. Wainwright, 477 U.S. 399 (1986), the Court “questioned the ‘retributive value of executing a person who has no comprehension of why he has been singled out.’”

As a result, the Court wrote, “[n]either Panetti nor Ford ‘clearly established’ that a prisoner is incompetent to be executed because of a failure to remember his commission of the crime, as distinct from a failure to rationally comprehend the concepts of crime and punishment as applied in his case.” This conclusion necessarily required reversal of the Eleventh Circuit, concluded the Court.

The Supreme Court explained: “The state court did not unreasonably apply Panetti and Ford when it determined that Madison is competent to be executed because—notwithstanding his memory loss—he recognizes that he will be put to death as punishment for the murder he was found to have committed. Nor was the state court’s decision founded on an unreasonable assessment of the evidence before it. Testimony from each of the psychologists who examined Madison supported the court’s finding that Madison understands both that he was tried and imprisoned for murder and that Alabama will put him to death as punishment for that crime.”

Justice Ginsburg, in a concurring opinion joined by Justice Breyer and Justice Sotomayor, noted that “[t]he issue whether a State may administer the death penalty to a person whose disability leaves him without memory of his commission of a capital offense is a substantial question not yet addressed by the Court. Appropriately presented, the issue would warrant full airing. But in this case, the restraints imposed by the Antiterrorism and Effective Death Penalty Act of 1996, I agree, preclude consideration of the question.”

Justice Breyer in his own concurring opinion asked whether the Court should reconsider the continued constitutionality of the death penalty itself.

The judgment of the Eleventh Circuit was reversed. See: Dunn v. Madison, 199 L. Ed. 2d 243 (2017). 

Brandon Sample is an attorney and the co-author of The Habeas Citebook: Ineffective Assistance of Counsel—which is published by Prison Legal News. Brandon practices exclusively in federal courts across the United States. Learn more about Brandon at https://sentencing.net.

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