Cuero v. Cate, No. 12-55911(6-30-16)(Wardlaw with Silverman; O'Scannlain dissenting). "A promise made is a debt unpaid," penned Robert Service.  A majority panel of the 9th agreed in this appeal from a denial of a habeas seeking performance of a plea agreement.  The denial was reversed and the petition granted.

The petitioner had entered into a plea with the state that had him facing a maximum sentence of 14 years and 4 months imprisonment for a plea of causing bodily injury under a DUI and being a felon in possession.   The state agreed to dismiss other priors.  The plea agreement was accepted by the court.  The state then amended the complaint to allege another prior (!) which exposed the petitioner to 64 years of an indeterminate sentence. The court allowed the amendment.

The majority found this action contrary to US Supreme Court precedent and violative of state contract law.  The majority held that the state reneged on its part of the bargain, and acted contrary to the contract that was the plea.  The court, having accepted the initial plea, only could sentence; it could not now allow amendment. Accepting the plea made it binding on both sides. The remedy of specific performance was required.  A withdrawal of the plea was no remedy at all.

O'Scannlain dissented.  He argued that AEDPA deference was not unreasonable.  O'Scannlain would hold that the discovery of a prior conviction by probation allowed the state to allege it.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2016/06/30/12-55911.pdf