FILED
NOT FOR PUBLICATION FEB 23 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KYLE DEBERRY, No. 09-17434
Petitioner - Appellant, D.C. No. 3:04-cv-00858-SMM
v.
MEMORANDUM*
CHARLES R. RYAN; TERRY L.
GODDARD,
Respondents - Appellees.
Appeal from the United States District Court
for the District of Arizona
Stephen M. McNamee, Senior District Judge, Presiding
Submitted February 18, 2011**
San Francisco, California
Before: TALLMAN and CALLAHAN, Circuit Judges, and CONLON, District
Judge.***
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Suzanne B. Conlon, United States District Judge for
the Northern District of Illinois, sitting by designation.
Petitioner Kyle DeBerry appeals the district court’s denial of a petition for a
writ of habeas corpus filed under 28 U.S.C. § 2254. DeBerry pled guilty to
manslaughter in the Superior Court of Coconino County, Arizona. He argues that
prosecutors breached their plea agreement when, during sentencing proceedings,
they described the homicide in a manner that suggested DeBerry committed
unprovoked first-degree murder as opposed to manslaughter.
The Arizona State Court of Appeals held that prosecutors had argued the
degree of provocation, not its existence, so did not breach the agreement. DeBerry
argues that the state court of appeals decision was contrary to Santobello v. New
York, 404 U.S. 257 (1971), under 28 U.S.C. § 2254(d)(1) and based on an
objectively unreasonable factual determination in violation of § 2254(d)(2).
The state court of appeals’ decision was not an unreasonable application of,
or contrary to, Santobello, 404 U.S. 257. See 28 U.S.C. 2254(d)(1). In Santobello,
prosecutors failed to keep a specific promise articulated in the agreement. Here,
the terms of the plea agreement were met. Furthermore, sentencing was left to the
court’s discretion and the prosecution never said or did anything to suggest it was
arguing for a harsher sentence than was already available for manslaughter. Nor
did prosecutors agree as part of the plea to remain silent at sentencing. The record
2
does not support a conclusion that the state court was objectively unreasonable in
its application of Santobello.
Regarding DeBerry’s claim under § 2254(d)(2), the court’s factual
determination was not unreasonable considering the totality of evidence presented
in the state-court proceeding. See Wood v. Allen, 130 S. Ct. 841, 848 n.1 (2010)
(internal citations omitted). Even though, in response to DeBerry’s argument that
provocation was extreme, prosecutors made statements that could reasonably be
interpreted as suggesting first-degree murder instead of manslaughter, they offered
additional evidence suggesting manslaughter, and reiterated on multiple occasions
that DeBerry was provoked into committing a non-premeditated killing.
Furthermore, nothing suggests prosecutors argued for life imprisonment or death,
the sentencing options available for first-degree murder. To the contrary,
prosecutors conceded to a sentence within the statutory range for manslaughter and
DeBerry received a sentence of sixteen years, five years less than the maximum
sentence available. Because the state court’s factual determination that prosecutors
were arguing that minimal provocation existed is not objectively unreasonable, this
claim fails as well.
We decline to reach petitioner’s uncertified claim. See 28 U.S.C. §
2253(c)(2).
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AFFIRMED.
4