Fox v. Johnson (832 F.3d 978, 2016)

Concurrence by Judge HURWITZ;

Dissent by Judge REINHARDT

OPINION

N.R. SMITH, Circuit Judge:

Candace Lee Fox pleaded guilty to second-degree murder in 1984 in California Superior Court and, pursuant to a plea agreement, was sentenced to a term of imprisonment of fifteen years to life. Approximately five years later, Pox successfully petitioned to withdraw her guilty plea after establishing that the sentencing court failed to inform her that she would receive a mandatory term of lifetime parole as a direct consequence of her plea. At her subsequent trial, Fox was convicted of first-degree murder, first-degree burglary, and the special circumstance that the murder was committed in the course of a burglary. She was sentenced to life imprisonment without the possibility of parole. In this 28 U.S.C. §2254 habeas proceeding, Fox now argues that the State originally promised her a term of imprisonment no greater than seven and one-half years in exchange for her plea, and asks for specific performance of that purported agreement.

We refuse Fox’s request and affirm the district court, because Fox chose in the state habeas proceedings to seek vacation of her conviction, rather than specific performance of the purported plea agreement. She therefore has no due process right to specific performance of the rescinded agreement.

FACTUAL BACKGROUND

In June 1984, Fox, Janet Meyer, Scott Peters, and Eddie Rangel drove to Lewis Levy’s apartment to collect $100 that Levy allegedly owed Meyer for sexual services. Meyer told the others that Levy had $20,000 to $30,000 in travelers checks in his apartment. The group forced their way into the apartment and held Levy at gunpoint while they searched for cash and travelers checks. After they found Levy’s wallet and $20,000 in travelers checks, Meyer and Rangel departed to purchase cocaine, leaving Fox and Peters with Levy.

Levy took this opportunity to run for the door. Peters struck Levy over the head with the barrel of his revolver until the handle broke. Peters then attempted to shoot Levy, but his gun jammed. Fox handed Peters a large steak knife from Levy’s kitchen. Peters attempted to stab Levy twice, but the blade bent and did not penetrate. At that point, Levy fell to the ground nearly unconscious. When Meyer and Rangel returned with the cocaine, Levy remained semiconscious on the ground. After Rangel left, Peters explained to Meyer that Levy had tried to escape.

After Fox, Peters, and Meyer used the cocaine, Meyer stated that she was not leaving the apartment until Levy was dead. Meyer took a Swiss Army knife from her pocket and repeatedly stabbed Levy. Fox struck Levy over the head with a beer bottle, and Peters attempted to strangle Levy with a phone cord. Nonetheless, Levy was still alive. Peters then left the apartment and waited in Fox’s car. Twenty minutes later, Fox and Meyer left the house with two shopping bags containing the gun and knives used in the attack. They told Peters that Levy was dead.

The next day, the group cashed several of Levy’s travelers checks and purchased drugs. The following morning, Meyer’s roommate called the police after overhearing an argument between Meyer and Fox about the murder. The police questioned Meyer, who disclosed the location of Levy’s body. After further investigation, the police arrested Fox, Meyer, and Peters.

PROCEDURAL BACKGROUND

A. Fox’s Guilty Plea and Sentence

Fox, Meyer, and Peters were charged with first-degree murder, first-degree burglary and robbery, and the special circumstances of (a) murder during the commission of a robbery and burglary and (b) use of a deadly weapon in the murder, making them eligible for the death penalty. Fox agreed to plead guilty to second-degree murder in exchange for testifying against Peters.

The plea agreement was not reduced to writing. Fox argues that she was promised she “would be paroled after serving 7.5 years with good behavior.” The State contends that Fox was promised she would be sentenced to fifteen years to life in prison, but would be eligible for parole consideration after seven and one-half years. Fox’s change of plea hearing on November 6, 1984, supports the State’s contention:

PROSECUTOR: By way of sentence ... you’re going to receive — as we discussed, you’re going to receive 15 years to life on this case. Do you understand that?

FOX: Yes.

PROSECUTOR: That is the sentence for second degree murder. There are no enhancements. It’s a straight second degree and you’re going to receive a sentence from [the court] of 15 years to life.

FOX: Yes.

PROSECUTOR: And do you understand that it’s up to you how much time you will do. It’s indeterminate. We can make no promises or representations on what the Board of Prison Terms will or will not do or when they will release you. There is a life-time top. Do you understand that?

FOX: Yes.

After being so advised, Fox pleaded guilty. The court accepted her plea as knowing and voluntary. There is thus no contest that Fox agreed to a sentence of fifteen years to life. But, Fox was not advised during the plea colloquy that she also faced a lifetime term of parole when released.

At the sentencing hearing, Fox’s counsel asked for a continuance to amend the probation report. The court responded: “I don’t understand exactly what you’re doing here, Mr. Ficht. She is going to receive a sentence of fifteen to life, is that correct? Fifteen to life, and that’s going to be her sentence.” In response, Ficht stated that Fox’s probation report was “the most outrageous document I’ve sden.” The court told Ficht to “file an amendment. She’s going to be there for quite awhile. I don’t understand what the difference is. She should get going. She’s losing time.” Any parole consideration was only discussed during the following exchange:

FICHT: Also, if I may, for the record, Your Honor, I believe the People have indicated as part of the plea bargain that [Fox would] be looking at obtaining probation — parole, excuse me, in seven and a half years. Is that correct, [prosecutor]?

PROSECUTOR: That’s correct.

TRIAL COURT: All right. Understand that?

Fox now argues that this exchange “modified the plea agreement” to require that she be paroled after seven and one-half years in prison. However, neither the parties nor the court acknowledged any modification of the plea agreement at the hearing. Following the exchange between Fieht and the prosecutor, the court sentenced Fox to fifteen years to life in state prison without any reference to parole eligibility or release on parole, stating: “All right. Miss Fox, the court has read and considered the probation report. Probation is denied. You are sentenced to the state prison for the term prescribed by law, which in this case is fifteen years to life.” Fox did not object.

B. Post-Conviction Proceedings

On July 1, 1986, Fox filed her first petition for a writ of habeas corpus in state Superior Court. Rather than seeking specific performance of the alleged plea agreement, Fox instead sought to withdraw her plea of guilty on two grounds.

First, Fox alleged that, when she entered her plea, she “did not understand that her term could exceed seven and one-half years even if her prison behavior were good.” Instead, Fox claimed that she believed that she was “entitled to release after seven and one-half years, provided that she behaved properly in state prison.” Fox acknowledged that such a belief was contrary to California law, because a petitioner “is not entitled to release after serving the minimum period of incarceration.” Fox also acknowledged that “no firm promise ... was given [to her] before her actual sentencing” as to eligibility for parole in seven and one-half years. However, Fox maintained (citing the portion of the sentencing proceedings excerpted above) that the “the parties understood that if [Fox] was cooperative and fully truthful in her testimony, she would be eligible for parole after 7 1/2 years ... and in fact would receive parole if she behaved herself in state prison.” Fox also argued that, before entering her plea, she “was not advised of the mandatory post-incarceration parole term.” Fox asserted that, had “she known the full consequences of her guilty plea, she would not have pled guilty.”

Second, Fox asserted that she had received ineffective assistance of counsel during the plea process and that she was “not in fact guilty of second degree murder.” Fox argued that her previous attorney “erroneously” told her that, if she went to trial, she could not use a defense of duress; her new counsel, on the other hand, assured her that she “had a good defense of duress.” Fox argued that her former attorney failed to “comprehend and/or advise her of the defenses available” and that she entered her plea after “reifying] upon [such] erroneous legal advice.” The Superior Court denied this first habeas petition, citing the guilty plea transcript.

On August 26, 1986, Fox filed a second petition in the Court of Appeal, alleging “that her sentencing was unlawful and the matter should be remanded for resentenc-ing.” In this petition, Fox repeatedly insisted that she sought “withdrawal [of] her plea of guilty,” making the same arguments as those in her Superior Court petition. On September 4, 1986, the Court of Appeal denied the petition as not ripe, because Fox had not yet served seven and one-half years in prison.

On January 24, 1989, after serving just over four and one-half years in prison, Fox filed a third habeas petition in the state Superior Court. The arguments echoed those in her previous petitions. Fox asked to withdraw her guilty plea, asserting that it was not voluntary and that her counsel was ineffective. Fox also argued that (1) newly discovered evidence exonerated her of the murder; (2) defense counsel failed to throughly investigate and advise her regarding a viable duress defense; (3) she was not advised of a mandatory parole term after incarceration and “would not have entered a guilty plea if she had known of this lifetime parole”; and (4) she did not understand that her period of confinement would exceed seven and one-half years with good prison behavior. Importantly, this petition again did not seek specific performance of the alleged plea agreement. On October 13,1989, the Superior Court granted the habeas petition, setting aside Fox’s conviction and granting her a new trial on the basis that she had not been informed before entering the plea that she faced lifetime parole. The court did not address Fox’s other arguments.

On November 26, 1990, shortly before the new trial was to begin, Fox filed a motion seeking, for the first time, to enforce the previous plea agreement as she understood it — that is, assuring release after seven and one-half years — or, in the alternative, preventing the State from seeking more than a second-degree murder conviction at trial. The State argued that, because Fox had successfully withdrawn her plea of guilty, there was no plea agreement to enforce. The Superior Court denied “specific performance of the original case settlement.”

Fox was tried on the original charges of first-degree murder, first-degree burglary, and the special circumstance that the murder was committed in the course of a burglary. On January 28, 1992, the jury returned guilty verdicts on all charges. On May 13, 1992, Fox again requested that the court order specific performance of her prior plea bargain, arguing she was entitled to eligibility for parole in seven and one-half years. On May 29, 1992, the court denied the motion and sentenced Fox to life imprisonment without the possibility of parole.

Fox appealed, asserting, among other things, that “the trial court erred in denying appellant’s motions for specific performance of her plea bargain,” citing Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), for the proposition that specific performance is a remedy for breach of a plea agreement. On March 30, 1994, the California Court of Appeal affirmed Fox’s conviction. The court concluded that Fox was not entitled to specific performance of her plea bargain, stating that:

When Fox pled guilty in 1984, she got what she bargained for, a sentence of 15 years to life, with a promise of parole in seven and one-half years. Five years into her sentence (with only two and one-half years to go), Fox decided she didn’t like the deal she’d made, petitioned for a writ of habeas corpus and succeeded in having her plea set aside, on the ground she had not been fully advised of the consequences of her guilty plea (her alternative ground of duress was rejected). She clearly felt very strongly that the obligation of a lifetime on parole was not something she could accept.... She got exactly what she asked for — her plea was set aside and the People were required to prove the charges against her.

Fox then filed a petition for review in the California Supreme Court which was summarily denied on June 30 1994.

On April 22, 1997, Fox filed a new habe-as petition in the Superior Court, which was denied on May 14, 1997. Fox filed another habeas petition in the Court of Appeal on April 23, 1998. On July 24, 1998, that court remanded for an evidentiary hearing on whether Fox received ineffec-five assistance of counsel in connection with the habeas petition that resulted in her guilty plea being withdrawn. The Superior Court “cabined” its inquiry to the question of whether counsel had advised Fox that, if she successfully withdrew her plea, she could face a new trial and a longer sentence, including a potential life sentence without the possibility of parole. During the two-day hearing, Fox’s habeas counsel, Rowan Klein, testified that he had advised Fox that, if her habeas petition were granted, she would go back to square one and face the possibility of a sentence of life without parole. When asked if he considered seeking specific enforcement of the original plea bargain prior to seeking to withdraw the plea, Klein responded,

I’m sure I did but ... [the reference to obtaining parole in seven and a half years wasn’t] a plea bargain because it’s an attorney uttering incompetent words at the time of sentencing. It’s not something that is legally binding on The Court or the District Attorney, unfortunately. I mean, you can try and turn it into that through alliance and whatever, but, legally, it probably isn’t the strongest argument. And that’s why I sought relief on the stronger argument, which was the failure to advise her of the parole consequences.... My assessment was that the comments of Bruce Ficht [Fox’s counsel at sentencing] are ... an indication that he didn’t know what he was taking about . -.. with respect to the meaning of a 15-to-life sentence. To me, a plea bargain is when the parties may-have a discussion at the time of the plea, not when an attorney makes a gratuitous comment at the time of sentencing.

The Superior Court denied Fox’s petition, finding that she had been advised prior to the 1989 grant of habeas “of all the possible ramifications that were legally available, including — and it may even have been the death penalty — but certainly the option of life without the possibility of parole; that she’d go back to square one.”

On February 9, 2001, Fox filed a new habeas petition in the California Court of Appeal, which was denied without explanation or citation to authority on August 15, 2001. On November 24, 2003, Fox filed a habeas petition in the California Supreme Court, which was denied on July 14, 2004, in an order stating: “Petition for writ of habeas corpus is DENIED. (See In re Robbins (1998) 18 Cal.4th 770, 780, 77 Cal.Rptr.2d 153, 959 P.2d 311.).”

Fox filed a pro se 28 U.S.C. §2254 habeas petition in the district court on August 13, 2004, claiming that the state courts denied her due process rights by failing to specifically enforce her 1984 plea agreement. A magistrate judge ultimately recommended denying the petition, noting that Fox had “successfully moved to withdraw her guilty plea before she was eligible for release on parole; therefore, the State could not have actually breached the parole agreement in the manner petitioner claims.” The district court adopted the report and recommendation, denied the petition, and issued a certificate of appealability on the question of the specific performance of Fox’s 1984 plea agreement. This appeal timely followed.

STANDARD OF REVIEW

The district court’s denial of a petition for a writ of habeas corpus is reviewed de novo. Jones v. Taylor, 763 F.3d 1242, 1245 (9th Cir. 2014). “[A] federal district court’s findings and its adoption of the findings of a federal magistrate judge are reviewed under the clearly erroneous standard.” Sanders v. Ratelle, 21 F.3d 1446, 1452 (9th Cir. 1994).

Under the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”), a federal court may not grant a habeas petition filed by a person in state custody:

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). However, where “no state court has adjudicated [the] claim on the merits, and the state has established no procedural bar to its consideration, the strictures of 28 U.S.C. § 2254(d). do not apply, and our review is de novo.” Riley v. McDaniel, 786 F.3d 719, 723 (9th Cir. 2015); see also Chaker v. Crogan, 428 F.3d 1215, 1221 (9th Cir. 2005) (applying de novo standard of review to a claim in a habeas petition that was not adjudicated on the merits by the state court); Lewis v. Mayle, 391 F.3d 989, 996 (9th Cir. 2004) (same).

AEDPA applies '‘to a single state court decision, not to some amalgamation of multiple state court decisions.” Barker v. Fleming, 423 F.3d 1085, 1093 (9th Cir. 2005). “When more than one state court has adjudieated a claim, we analyze the last reasoned decision.” Id. at 1091 (citing Ylst v. Nunnemaker, 501 U.S. 797, 803-04, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991)). Under Ylst, we only look through the last state court decision to a prior decision on the merits if the last decision is unreasoned, that is, if the decision “does not disclose the reason for the judgment.” 501 U.S. at 802, 111 S.Ct. 2590; see also Castellanos v. Small, 766 F.3d 1137, 1145 (9th Cir. 2014) (“[A] state supreme court’s summary denial of discretionary review, which generally does not state a reason for that denial, is not a ‘reasoned’ decision under AEDPA, and we must ‘look through’ that unexplained decision to the last court to have provided a ‘reasoned’ decision.”).

The last “reasoned” decision here was the California Supreme Court’s 2004 order denying Fox’s habeas petition with a citation to In re Robbins, 18 Cal.4th 770, 780, 77 Cal.Rptr.2d 153, 959 P.2d 311 (1998). However, the citation to Robbins indicated that the decision rested on the untimeliness of Fox’s petition, not on the merits of her constitutional claims. See Walker v. Martin, 562 U.S. 307, 313, 131 S.Ct. 1120, 179 L.Ed.2d 62 (2011) (“A summary denial citing ... Robbins means that the petition is rejected as untimely.”). The State has now waived the affirmative defense of procedural default that formed the basis of the 2004 California Supreme Court’s reasoned decision. The last reasoned decision on the merits of Fox’s current claims is the affirmance of her conviction on direct appeal by the California Court of Appeal in 1994.

The State urges that we apply AEDPA deference to the 1994 Court of Appeal decision. But, we need not decide that issue. We may “deny writs of habeas corpus under § 2254 by engaging in de novo review when it is unclear whether AEDPA deference applies, because a habeas petitioner will not be entitled to a writ of habeas corpus if his or her claim is rejected on de novo review.” Berghuis v. Thompkins, 560 U.S. 370, 390, 130 S.Ct. 2250, 176 L.Ed.2d 1098 (2010). We conclude that, even under de novo review, Fox cannot prevail.

DISCUSSION

Fox claims she has a due process right to specific performance of her original plea deal, in- which she alleges the State promised to release her from prison after seven and one-half years. For purposes of our analysis, we assume (without deciding) that the State promised Fox release after seven and one-half years and that the State breached that promise. Nevertheless, Fox is not entitled to specific performance of her plea agreement, because she voluntarily chose to withdraw her guilty plea, thereby voiding her plea agreement. There is thus no plea agreement to enforce. Under these circumstances, there is no precedent suggesting that Fox was denied due process by denying her specific performance.

As the Court of Appeal observed, Fox’s successful habeas petition sought only to withdraw her guilty plea as not knowing and voluntary, rather than to enforce a plea agreement. At no point in the habeas proceedings, which culminated in the state court’s order allowing Fox to withdraw her plea, did Fox seek to enforce the plea agreement; rather, she sought to set it — ■ and the accompanying guilty plea — aside. Although Fox argued that she was serving a longer sentence than she expected, she advanced that argument solely to show that she was not advised of the extent of the sentence she would serve if she pleaded guilty. She simultaneously argued both her actual innocence and that the plea was invalid because she was never informed of the possibility of a parole term following release. The record indicates that Fox sought to withdraw her plea so that she could assert defenses to the charges against her. Indeed, Fox’s habeas counsel testified he made a strategic decision not to seek to enforce the alleged plea agreement. Fox did not attempt, until the eve of her trial, to hold the State to the deal she believed it made with her.

Fox’s current petition rests on the theory that a criminal defendant has a due process right to bind the government to a plea agreement even after choosing to withdraw the plea rather than seek specific performance of the plea agreement. Fox identifies no precedent recognizing that right, nor have we found any. Indeed, the weight of persuasive precedent cuts the other way. We have instead explained that “[w]hen the district court exercises its power under the. Federal Rules to reject a plea agreement or permit a defendant to withdraw his plea, it is clear by implication that the parties are consequently released from their obligations under the plea agreement.” United States v. Partida-Parra, 859 F.2d 629, 634 n.6 (9th Cir. 1988). Moreover, a defendant who “chose of his own accord to challenge an aspect of the proceedings against him, ... [takes] a calculated risk of’ having the original charges reinstated. Taylor v. Kincheloe, 920 F.2d 599, 603-04 (9th Cir. 1990). The Sixth Circuit has come to the same conclusion, holding that when a defendant succeeds in withdrawing a guilty plea entered pursuant to a plea agreement, the plea agreement is “nullified” and “the government [is] no longer bound by its promises therein.” United States v. Jones, 469 F.3d 563, 566 (6th Cir. 2006). In the course of discussing prosecutorial vindictiveness, the Fifth Circuit noted “[we] see no distinction between a defendant’s refusal to plead guilty and a defendant’s successful withdrawal of a guilty plea.... In.both circumstances the' defendant has, in essence, refused the Government’s offer of a plea and exercised his right to force the Government to prove its case.” United States v. Saltzman, 537 F.3d 353, 361 (5th Cir. 2008). Fox rescinded her plea agreement; there was nothing left to enforce.

Fox urges us to apply state contract law. See United States v. Barron, 172 F.3d 1153, 1158 (9th Cir. 1999) (en banc) (“[W]e have frequently analyzed plea bargains on contract principles.”). However, doing so does not aid her. Under California law, “[r]escission extinguishes a contract, rendering it void ab initio, as if it never existed.” DuBeck v. Cal. Physicians’ Serv., 234 Cal.App.4th 1254,184 Cal.Rptr.3d 743, 750 (2015). By obtaining a writ of habeas corpus nullifying her plea as not knowing and voluntary, Fox also nullified her plea agreement. Whatever terms were in that agreement are no longer operative.

In Santobello v. New York, the Supreme Court held that the remedies for a breach of a plea agreement were'either specific performance of the agreement or rescission of the entire agreement and withdrawal of the guilty plea, to be determined by the state court based on what “the circumstances of [the] case require.” 404 U.S. 257, 263, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). Where rescission is unable to repair the harm done by the government’s breach, and where the defendant has upheld her end of the bargain, we have held that “specific performance [is] the only viable remedy.” Brown v. Poole, 337 F.3d 1155, 1161 (9th Cir. 2003). Indeed, we have mandated specific performance as a remedy even where the sentence the prosecutor promised to a defendant was not a sentence allowed for under state law. Buckley v. Terhune, 441 F.3d 688, 699 (9th Cir. 2006) (en banc).

But, here, rather than seek specific performance, Fox chose to withdraw her guilty plea, voiding the plea agreement. She sought one of the remedies under Santobello, and received it. Even if she had sought specific performance, Santobello “leave[s] to the discretion of the state court” whether the circumstances of the case require specific performance or an opportunity to withdraw the plea. 404 U.S. at 263, 92 S.Ct. 495. No binding Supreme Court decision finds a constitutional violation when a state court chooses the remedy a petitioner expressly chose or when she maintains her innocence of the original charges. Nor does any decision of which we are aware find that a state court abuses its discretion by declining to enforce a plea agreement which would impose a term of parole to which the defendant claims she was never made aware and to which she steadfastly objects.

Fox now asserts that rescission of the plea agreement (1) was forced by the State’s breach and (2) she never waived her right to assert a breach of the plea agreement. We have found no authority, and Fox cites none, to support her first contention. In any event, the State did not coerce Fox to seek to withdraw her plea, rather than seek to enforce the alleged agreement. Rather, the State steadfastly maintained that Fox was entitled to no relief at all. At the time Fox sought state habeas relief, Santobello was the law of the land. Nothing prevented Fox, acting with the assistance of counsel, 'from seeking specific performance. Yet, she chose not to do so; her counsel, whose effectiveness is not today at issue, testified that he considered but rejected that option.

Fox maintains that, even after withdrawing her plea, she had a due process right to assert a breach of the plea agreement, and this right was never waived. We agree that Fox had a constitutional right to enforce the plea agreement, see Doe v. Harris, 640 F.3d 972, 975 (9th Cir. 2011) (en banc), and that a waiver of a constitutional right must be knowing and voluntary, see Schell v. Witek, 218 F.3d 1017, 1023 (9th Cir. 2000). But “even constitutional rights can be waived if not timely asserted.” Hill v. Blind Indus. & Servs. of Md., 179 F.3d 754, 758 (9th Cir. 1999). If there were a time for Fox to assert a breach of her plea agreement, it was before the guilty plea was withdrawn and the agreement was rescinded.

By the time Fox sought specific performance, the plea agreement had been rescinded. We confronted similar circumstances in United States v. Burdeau, 168 F.3d 352 (9th Cir. 1999). In Burdeau, the defendant entered into a plea agreement that specified he was to receive a maximum of ten years’ imprisonment on a robbery count and would have a gun charge dismissed. Id. at 355. The defendant later withdrew his plea and asserted a new defense to the charges. Id. After the district court ruled that the defense was unavailable, the defendant sought to reinstate his original plea deal. Id. The State refused, and we held that the district court was not required to reinstate the plea. Id. at 358. Burdeau stands for the proposition that, once a plea agreement is rescinded, the State need not reoffer the same terms, and the trial court is not required to enforce the agreement’s now-defunct provisions.

We agree with our dissenting colleague that the circumstances of this case are unfortunate. The others convicted of the offense for which Fox is serving a life sentenced received lesser terms, and she kept her promise of cooperation to the State. Indeed, she would have been better off had the state court never granted her habeas petition; she would at least now be eligible for parole. But she chose to rescind a plea agreement that treated her as well as her co-defendants, despite her counsel’s advice that this could return her to ground zero. No Supremfe Court authority or other precedent establishes that the Due Process Clause requires the enforcement of a plea agreement under these circumstances. Accordingly, the district court did not err in denying Fox’s § 2254 petition.

AFFIRMED.

. When Fox pleaded guilty, second-degree murder in California was subject to a mandatory minimum of fifteen years to life. Cal. Penal Code § 190(a).

. On November 9, 1984, Fox testified for nearly five hours at Peters’s preliminary hearing. Peters later pleaded guilty to second-degree murder. Meyer also pleaded guilty to second-degree murder.

. The dissent states that Fox "never seriously denied her guilt.” Dissent 60. However, Fox specifically claimed in her first habeas petition that "she [was] not in fact guilty of [the] offense and was unaware of [the defense of duress] at the time she entered her plea.”

. Fox also alleged that she received letters from Peters, in which he took full responsibility for the murder.

. The dissent states that the State changed its position at this point and "admitted for the first time that, pursuant to the plea agreement, Fox was to serve 'about 7 1/2 years.' ” Dissent 36. We disagree with this characterization of the State’s argument.

From the beginning, the State has maintained that the parties bargained for a sentence of fifteen years to life for second-degree murder. The State has conceded that, pursuant to the plea agreement, Fox would be eligible for parole after seven and one-half years, though the only evidence in the record of such a promise was the exchange between Fox's counsel and the prosecutor at the sentencing hearing. The State has also argued that, notwithstanding such a promise, the minimum parole eligibility under California case law for Fox’s sentence was ten years, and thus a promise of eligibility before that time would have been unenforceable.

Before the California Court of Appeal, the State argued that the plea agreement was no longer enforceable because Fox had withdrawn her plea. The statement in the State’s brief that, "pursuant to the plea agreement, [Fox] would serve about 7 1/2 years” was not, as the dissent puts it, evidence that the State had previously lied, but rather .a shorthand version of the plea agreement between the parties. The California Court of Appeal then based its decision on the State's statement in its brief.

6. The Court of Appeal acknowledged "the inevitability of a habeas petition attacking the competency of the attorney who filed the petition to set aside Fox’s guilty plea.” However, it noted that such a claim would necessarily require "an evidentiary hearing to determine what Fox's attorneys told her at the time the decision was made to attack the guilty plea [given that she had already served over four years of her sentence].” Thus, such a "petition should be addressed to the trial court, not to us.”

The Court of Appeal concluded that Fox received "a sentence of 15 years to life, with a promise of parole in seven and one-half years,” and thus "got what she bargained for.” However, as Fox acknowledged in her first habeas petition, she was not entitled to parole after seven and one-half years under her original sentence. This error is not consequential, because the Court of Appeal's ultimate conclusion — that Fox “got exactly what she asked for” when her habeas petition was granted and the original conviction set aside — is correct.

. Fox does not claim prosecutorial vindictiveness in this habeas proceeding.

. There are limits to the analogy to contract law: "A plea bargain is not a commercial exchange.... On rescission of the agreement, the prisoner can never be returned to his 'original position': he has served time by reason of his guilty plea and his surrender of basic constitutional rights.” Barron, 172 F.3d at 1158. In that case, which involved a 28 U.S.C. § 2255 petition, this court sitting en banc refused to require a retrial, that is to completely void the guilty plea, when one of the counts of conviction later turned out to be unlawful. Id. at 1161. However, Barron turned on an interpretation of the scope of the relief available under § 2255. Id. at 1159. Fox seeks relief under § 2254. Thus, we are called on to determine what due process requires, not what relief Fox might be afforded were she a federal prisoner.

. Our recent decision in Cuero v. Cate, 827 F.3d 879, 2016 WL 3563660 (9th Cir. 2016), is not to the contrary. In Cuero, the defendant had pleaded guilty pursuant to a written plea agreement. The day before sentencing, the State moved to amend the complaint in a manner that would substantially increase the defendant’s sentence. The Superior Court granted the motion and allowed the defendant to withdraw his guilty plea. The defendant argued in his subsequent habeas petition that the State had breached the plea agreement and sought specific performance. The panel granted the petition, finding that permitting the defendant to withdraw his guilty plea was not an adequate remedy and that the Superior Court unreasonably failed to apply principles of California contract law to the plea agreement.

Unlike the defendant in Cuero, Fox opted not to seek specific performance in her first habeas petition. Therefore, the Superior Court here did not fail to reasonably apply the principles of California contract law when it granted Fox the very remedy she requested.

The dissent disagrees with our characterization of Cuero, stating that "[h]ere, as in Cuero, the state breached its agreement, and here, as in Cuero, the breach resulted in the withdrawal of the plea agreement.” Dissent 1006. This is incorrect. Nowhere in Fox’s first habeas petition did she seek specific performance or argue that the government had breached the agreement. Instead, from the outset, Fox sought to withdraw her plea, arguing that "she did not understand” the terms of the agreement and that her lawyer had provided ineffective assistance. In short, Fox got exactly what she requested. Cuero did not.

HURWITZ, Circuit Judge,

concurring:

Candace Fox committed a gruesome and senseless crime. She was ultimately convicted of first-degree murder, and does not argue in this § 2254 proceeding that she did not receive a fair trial.

Nonetheless, as both Judge Smith and Judge Reinhardt note, this is a troubling case. Fox originally pleaded guilty to second-degree murder in exchange for her testimony against a co-defendant. She held up her end of the bargain, testifying for five hours in a preliminary hearing. Yet both that co-defendant ahd another received lesser sentences than the one Fox is now serving. Moreover, the record of the plea bargaining process is,' to put it charitably, a mess. At one point the record suggests that Fox was promised release from prison after seven and one-half years, and at another reflects that Fox was clearly advised that her sentence was indeterminate, and that the parole board would ultimately decide when she would be released.

But, all this became moot when the superior court granted Fox’s habeas petition, setting aside her guilty plea and conviction. That is the remedy she repeatedly sought. Indeed, her habeas counsel testified that he thought about seeking specific performance of the purported plea agreement, but decided against it. That decision was motivated by the lack of clarity about precisely what the purported deal was; although we have assumed today that the State promised Fox release after seven and one-half years with good behavior, the record does not clearly establish that the agreement entitled Fox to release, rather than only parole consideration.

Fox does not today urge that she received ineffective assistance of counsel in the state habeas proceedings, and the state courts have found that she did not. Indeed, the record suggests that, when she sought habeas relief, Fox was unwilling to accept the original bargain. She claimed that she never would have pleaded guilty had she known of the required term of lifetime parole upon release, and asserted actual innocence. The State might well have chosen in the interests of justice to proceed only with second-degree murder charges against Fox on retrial. But, as Judge Smith explains, its decision not to do so was not unconstitutional. Still, having had a hand in producing an outcome that disfavored the one defendant who cooperated with the prosecution, the State could remedy this situation either through clemency or by once again offering Fox the chance to plead guilty to second-degree murder. But, we cannot order such relief; our role in this matter is constrained. In a § 2254 habeas petition, we are limited to determining whether the Constitution was violated. Judge Smith clearly explains why it was not, and I concur in his opinion in full.

. Judge Reinhardt's dissent is premised on the notion that, although Fox chose to vacate her plea agreement rather than to specifically enforce it, the state court violated the Due Process Clause by giving her exactly what she sought. But neither Cuero v. Cate, 827 F.3d 879, 2016 WL 3563660 (9th Cir. 2016), nor any other case Judge Reinhardt cites so holds. Absent ineffective assistance, a defendant whose plea agreement is breached is not limited to the remedy of specific performance; she may seek to vacate the pleá and go to trial. That is the unfortunate choice Fox made here.

REINHARDT, Circuit Judge,

dissenting:

Candace Fox’s crime was not a pretty one. Yet, in 1984, California made her a promise in exchange for her promise of consideration it badly wanted from her. It promised her that, if she testified against her co-defendant and pleaded guilty to second degree murder, she would be paroled, assuming good behavior, in seven and one-half years. If the State had kept its word, Fox would have been released from prison over two decades ago. Instead, because the State brazenly broke its promise to her and lied about it to the courts, Fox will now likely spend the rest of her life in prison, unless the governor commutes her sentence.

Thirty years ago, in 1986, when Fox filed her first habeas petition, this case should have had a simple resolution. There would be no petition before us today if the State had simply assured Fox that she would receive the term of imprisonment that she and the State had agreed to when she forfeited her freedom, or if the State courts that heard Fox’s 1986 petitions had fulfilled their obligation, under Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), to determine the appropriate remedy for the State’s breach of its plea agreement. Instead, the state prosecutors repeatedly denied promising Fox even the possibility of a release in seven and one-half years, despite the clear evidence to the contrary. The state courts for their part entirely disregarded her petitions, although the state court of appeal later found that she had been promised the parole to which she had repeatedly told them she was entitled. Frustrated with the struggle, Fox sought to withdraw from the terms of the “agreement” that the State unilaterally imposed upon her. Instead, although she had already fulfilled her part of the bargain, the court withdrew her entire plea agreement, and after serving almost her full seven and one-half year prison term, Fox found herself involuntarily facing trial anew — this time on- an even more serious charge, one that the State had promised not to bring.

In the thirty-odd years since Fox first sought to hold the State to its bargain, she has been failed by many people: the state prosecutors who abused her trust, the state judges who failed in their obligation to provide her with an appropriate remedy for the State’s broken promise, and the attorney who sought to “withdraw” her plea rather than seek the remedy she had desired from the beginning — specific performance of her bargain. The majority, while purporting to recognize that this is an “unfortunate” situation, concludes that it cannot provide Fox with a remedy due to the procedural posture of this case. While it comes as no surprise that my colleagues honestly believe that our habeas jurisprudence’s rigid adherence to procedural rules demands a result so antithetical to justice, I cannot in good conscience concur. In my opinion, due process, at its core, requires that every judicial proceeding be fundamentally fair, see Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 24-25, 101 S.Ct. 2158, 68 L.Ed.2d 640 (1981) — and what happened to Candace Fox is not fair, not by any possible conception of the word. If due process means anything, it means that the promise that the State made over thirty years ago should be enforced and Fox’s unconstitutional sentence of life without the possibility of parole should be vacated. Fox has more than served her time. I respectfully dissent.

I. BACKGROUND

The story of this case is one of repeated falsehoods by the state prosecutors and repeated errors by the state courts, each condemning Fox to untold years in prison in violation of the State’s original bargain. While the majority opinion describes the procedural posture of this , case at great length in order to explain why it believes there is nothing it can do for Fox — or for justice — its cold recitation of the facts does not adequately capture the injustice that has occurred. Nor can the majority opinion or. any other obfuscate the plain fact that after Fox carried out her part of the bargain, the State- obdurately and willfully refused to carry out its.

In 1984, Candace Fox struck a plea agreement with California prosecutors. The agreement was not reduced to writing but its terms were clear. Fox would plead guilty to second-degree murder and testify against her co-defendant. In exchange, the State would drop all additional charges against her. Under this plea, the State promised, she would be sentenced to 15 years to life, and would be paroled at the .end of seven and one-half years of imprisonment if she conducted herself properly while incarcerated. Although the State for many years denied ever making Fox any such promise, the transcript of her sentencing hearing reveals the truth, and the state court of appeal ultimately recognized that it did. As the transcript shows, after the sentencing judge announced Fox’s sentence of fifteen years to life, defense counsel objected, and the following exchange occurred:

[Counsel]: [I]f I may, for the record, Your Honor, I believe the People have indicated as part of the plea bargain that [petitioner would] be looking at obtaining probation-^-parole, excuse me, in seven and a half years [¶] Is that correct, [prosecutor]?

[Prosecutor]: That’s correct.

[Trial Court]: All right ... Also, the court will order a transcript of these proceedings to be sent with [petitioner] to the state prison just in an abundance of caution.

Fox fulfilled her end of the bargain. She testified at the preliminary hearing against her co-defendant for over five hours. Subsequently, she pleaded guilty to second-degree murder and commenced serving her sentence. In the course of doing so, she learned that the state prosecutor had made a false promise — a promise the State ultimately asserted that it could not fulfill. A representative of the parole board informed Fox that under California law she would not be eligible for parole until she had spent at least ten years in prison. Further, she learned that after her release she would be on parole for the rest of her life. Understandably dismayed to discover that the State had misrepresented the truth to her, Fox began her thirty year struggle to hold the State to its word — as it turned out, a hopeless Sisyphean task.

A. 1986 Habeas Petitions

In 1986, Fox filed her first habeas petition in the Los Angeles Superior Court seeking to ensure that the State would fulfill its end of the bargain. In it, she explained that, at the time she entered her plea, she understood that “she would be entitled to release after seven and one-half years, provided that she behaved properly in state prison” because of statements made by “her counsel and by the deputy district attorney” at the time of her plea. Further, she explained, she had never been advised that she would be placed on lifetime parole after release from prison. The superior court denied her petition on the same day that it was filed, citing only “page 4 of the plea transcript.”

Immediately thereafter, Fox filed another habeas petition, this time with the California Court of Appeal. Once again, she advised the court that the prosecutor had told her that “she could not serve more than 7-1/2 years of actual incarceration unless she failed to ‘behave herself in state prison” and that “until recently, [she] ha[d] been unaware that her sentence entailed] a potential life-long period of parole.” She did not request withdrawal of her plea. Instead, she told the court that her “sentencing was unlawful,” and that she wished the matter to be “remanded for resentencing.”

The resolution of these petitions should have been simple. At the time, Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971) had been the law of plea bargains for over a decade. In that case, the Supreme Court held that plea bargains were entitled to constitutional protection, and that “when a plea rests in any significant degree on a promise or agreement of the prosecutor ... such promise must be fulfilled.” Id. at 262, 92 S.Ct. 495 (emphasis added); see also Buckley v. Terhune, 441 F.3d 688, 694 (9th Cir. 2006) (en banc) (“Under Santobello v. New York, 404 U.S. 257, 261-62, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), a criminal defendant has a due process right to enforce the terms of his plea agreement.”). Further, when the government breaches its promise, the courts have an independent duty to determine that the defendant receive what he is “reasonably due.” Santobello, 404 U.S. at 262, 92 S.Ct. 495. That is to say, it is the constitutional responsibility of the courts to determine whether, under the circumstances of the case, the defendant should receive specific performance of his plea agreement or be given the opportunity to withdraw his plea. Id. at 264, 92 S.Ct. 495; see also id. at 267, 92 S.Ct. 495 (Douglas, J. concurring) (“One alternative may do justice in one case, and the other in a different case.”). Despite the State’s clear breach of the plea agreement in this case, however, neither the superior court nor the court of appeal ever conducted a Santobello inquiry to determine the appropriate remedy for the breach of Fox’s plea agreement. Instead, both summarily dismissed Fox’s petition.

B. 1989 Habeas Petitions

Three years later, Fox again petitioned the superior court for a writ of habeas corpus, this time with new counsel. In contrast to her earlier petition, Fox’s new counsel asked to have her guilty plea set aside on the ground that there had been newly discovered evidence exonerating her of the murder, and that her prior counsel had ineffectively advised her about a potential duress defense. Shortly thereafter, Fox replaced her counsel, because the woman had “what appeared to [Fox] like a nervous breakdown” when she had began “cracking up and laughing” and “talking to herself’ in the courtroom.

The replacement counsel filed a supplemental brief in support of Fox’s petition in which Fox asked to have her guilty plea set aside on two bases. The first ground for relief was that Fox’s plea was involuntary because she “did not understand that her period of confinement would exceed seven and one-half years with good prison behavior.” Although Fox’s petition termed the plea “involuntary,” the context of her argument shows that she was actually asserting that the State was applying a plea agreement to which she had not agreed and that it had breached its agreement as to the true plea. The plea was involuntary only to the extent that the court deemed it to be the agreement that the State claimed it to be (i.e., no promise of eligibility or entitlement to parole after seven and one-half years had been made). The plea was breached, however, if the terms were what Fox asserted they were and what they actually were: that a promise of entitlement for parole was part of the plea agreement. As the excerpt of the sentencing hearing described, and as the California Court of Appeal later found, under the agreement that Fox actually entered into, her incarceration could not exceed seven and one-half years with good behavior; instead, she would be paroled at that time. See Brown v. Poole, 337 F.3d 1155, 1159—62 (9th Cir. 2003). Thus, the State’s refusal to even consider Fox for release until she had served ten years in prison did not render Fox’s plea involuntary, but rather, constituted a breach of the plea agreement. See Puckett v. United States, 556 U.S. 129, 137, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009) (“When the consideration for a contract fails — that is, when one of the exchanged promises is not kept — we do not say that the voluntary bilateral consent to the contract never existed ... we say that the contract was broken.”). That Fox sought to “withdraw” her purportedly “involuntary” plea on this basis makes it plain that Fox was seeking to “withdraw” only from the terms of the agreement that the State was attempting to impose upon her unilaterally, not from the terms of the true agreement. Moreover, as is explained below, a request to withdraw includes a request to enforce in cases in which a plea agreement has been breached by the State. See discussion infra at 1003-10. The second ground for relief alleged in the supplemental petition was that Fox had not been advised that she faced a potential lifetime period of parole after her sentence.

A hearing was held in July 1989 at which the prosecutor denied that Fox had ever been promised that she could be released on parole in seven and one-half years. Indeed, it was disclosed at the hearing that Fox had been assigned a minimum release date in 1994 — which would require her to spend at least ten years in prison before even being considered for parole, despite the terms of her agreement. The superior court then granted Fox’s petition on an entirely different basis, holding that her plea was involuntary because she had not been advised of the lifetime parole period, and ordered that Fox’s entire plea be set aside. It did so without reaching the question of whether the State had breached the agreement or whether, if a breach occurred, withdrawal or enforcement would be the appropriate remedy. Indeed, it announced its decision without ever asking Fox if she had a preferred remedy for the breach, or attempting to determine whether her request to “withdraw” her plea after she had already served a substantial portion of her sentence was knowingly, intelligently, and voluntarily made. Instead, upon announcing its decision, it immediately set a trial date.

C. Trial, Sentencing, and Appeal

Twice before trial — once two years before the jury was empaneled, and another six months before that time — Fox filed motions asserting that the court should not have withdrawn her plea because, under Santobello, specific performance was a remedy that the court should have considered. (In fact, in Fox’s case, it was the only appropriate remedy.) At the time of her second motion, Fox had served virtually the entirety of the sentence she had been promised would be her maximum, assuming good behavior. In its opposition, the State continued to maintain that Fox was never promised that she would be entitled to parole in seven and one-half years, and that under California law it had never been possible for her even to be eligible for parole in seven and one-half years. The superior court denied both of Fox’s motions without comment and in a form order. On January 28, 1992, a jury convicted her of first degree murder and first degree burglary, charges which the State had previously dropped pursuant to the terms of the plea agreement that it breached. At this time, of course, Fox had served the entirety of the promised seven and one-half year term.

Before sentencing,'Fox once again asked that she be given the benefit of her bargain. As she explained, she had been promised parole in seven and one-half years in exchange for her testimony against her co-defendant and her plea of guilty, but had been denied the benefit of her bargain by the State after she had complied fully with her promise. The due process clause, she argued, required that she be given an appropriate remedy for the breach of the promises made to her, but, she asserted, she did not receive such a remedy. Instead, after serving almost the full seven and one-half years, just months before she was entitled to release, the state court subjected her to a trial on a more serious charge — a charge on which the State had promised it would not prosecute her. That prosecution was in no way just or fair. As she told the court in her brief, “[e]ven if acquitted she had already done the time she bargained for in the beginning.” The State, she argued, got what it bargained for, and should be “es-topped” from denying the same to Fox after she had detrimentally relied on its promises throughout her years in prison. Further, she contended, since the superior court had already vacated her plea — she should be allowed to plead to a lesser charge that would give effect to the original agreement of the parties in compliance with California law. The court denied her motion and sentenced her to life imprisonment without the possibility of parole.

Fox appealed and again argued that under Santobello she was constitutionally entitled to a remedy for the breach of her plea agreement, and that “[a]fter she had served in excess of 7 $ years, it was unjust” for the court to allow her only the option of withdrawing her plea; in doing so, she contended, it offered her no remedy; rather it presented her with the fundamentally unfair choice of either accepting a sentence that increased the period of incarceration provided for by her original agreement or going to trial in which case she faced even far greater punishment if convicted. She argued that rather than a coerced withdrawal, she should have been given specific performance as the only appropriate remedy for the State’s breach of the plea agreement.

In response, the State did not deny its promise to Fox, nor did it claim — as it had in the past — that its promise to her was unenforceable under California law. Instead, it admitted for the first time that, pursuant to the plea agreement, Fox was to serve “about 7 ^ years,” but asserted that its promise was now unenforceable because the court had withdrawn Fox’s plea agreement at her request.

In its unpublished 1994 decision, which the State contends is the last reasoned decision and thus the decision that we must examine under habeas law, the state court of appeal agreed that Fox had been promised release in seven and one-half years. It found that Fox “bargained for[ ] a sentence of 15 years to life, with a promise of parole in seven and one-half years.” Then, ignoring the fact th^t the State had repeatedly denied ever making this promise and that Fox’s parole eligibility date had been set well after the expiration of her seven and one-half year term, the California Court of Appeal inexplicably found that the only reason Fox had asked to withdraw her plea was that “she didn’t like the deal she’d made.” It then concluded that she had no right to the bargained-for sentence limited to seven and one-half years in prison, even though she had fulfilled her part of the bargain, because she had voluntarily rescinded the plea agreement. Fox again appealed, and the California Supreme Court denidd her petition for review without comment.

D. Post-Trial State Habeas Petitions

Following the denial of her direct appeal, Fox filed yet another habeas petition in superior court, once again raising her claim that she was entitled to specific performance of the original plea agreement. She also asserted that her prior habeas attorney had provided ineffective assistance of counsel in seeking to set aside her plea in 1989 rather than seeking specific performance or resentencing. Her petition was denied without comment or citation of authority.

Fox again returned to the California Court of Appeal, which remanded for an evidentiary hearing on the issue whether Fox received ineffective assistance of counsel by filing a habeas petition that resulted in her guilty plea being withdrawn. In that hearing, the superior court limited its inquiry to the question whether counsel advised Fox about the risk that she could face a new trial or a longer sentence. It did not examine whether the attorney should have advised Fox about her right to specific performance of her original bargain.

During the two-day hearing, Fox’s former habeas counsel testified that he had asked to withdraw her plea because he believed that the District Attorney would offer a second plea bargain. He further testified that he had declined to seek specific performance because he did not believe that the statements made about the promise of parole during Fox’s sentencing hearing were “legally binding on The Court or the District Attorney.” Accordingly, he believed that asking for withdrawal on the basis that Fox’s plea was involuntary was a stronger argument.

Fox’s testimony revealed that the advice given to her by her habeas counsel was muddled at best. Specifically, she explained that, although she knew her 1989 habeas petition asked to have her plea “withdrawn,” she understood that if that petition were successful, the court would give her the seven and one-half year period of incarceration that she had been promised. She testified that, on the basis of the advice of her counsel, she believed that the court would “adjust some kind of plea bargain” so that she could receive the promised seven and one-half years. Fox explained that she had been informed that by requesting “withdrawal” of her plea, she would enable the court to invalidate the terms of the bargain as the prosecutor wrongfully described them and that the court would then be able to enforce specific performance of the true agreement by allowing her to change her plea to that of a lesser charge, one which, under California law, would allow her to be paroled upon completion of the promised seven and one-half years. Her testimony, in this respect is, of course, credible because the minimum ten year eligibility date for parole on which the State insisted was based on a provision of state law of which the prosecutor was apparently unaware when he promised her parole after seven and one-half years. Changing Fo