FILED
NOT FOR PUBLICATION
JAN 10 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SAUL GARCIA CUEVAS, No. 12-55807
Petitioner-Appellant, D.C. No.
2:10-cv-09775-VAP-MLG
v.
JAMES D. HARTLEY, Warden, Avenal MEMORANDUM*
State Prison,
Respondent-Appellee.
Appeal from the United States District Court
for the Central District of California
Virginia A. Phillips, Chief Judge, Presiding
Argued and Submitted December 12, 2016
San Francisco, California
Before: KOZINSKI and GRABER, Circuit Judges, and BREYER,** District
Judge.
Petitioner Saul Garcia Cuevas appeals the denial of his petition for a writ of
habeas corpus. We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Charles R. Breyer, United States District Judge for the
Northern District of California, sitting by designation.
1. After an extended crime spree, Cuevas faced up to two consecutive life
sentences plus at least another 37 years in prison. He pleaded guilty to reduced
charges, including 27 counts of robbery, that exposed him to a maximum sentence
of 37 years and eight months. When all was said and done, the state court
sentenced Cuevas to 35 years and eight months.
As it turns out, eight of the robbery counts were duplicative under state law.
Cuevas argues that his lawyer was constitutionally ineffective under Strickland v.
Washington, 466 U.S. 668 (1984), for not advising him of those counts at the plea
stage or challenging them under California Penal Code section 654 at sentencing.1
To prevail on a Strickland claim, Cuevas must show (1) that counsel’s performance
was deficient and (2) that the deficient performance resulted in prejudice. See
Strickland, 466 U.S. at 687. We review whether the state court’s rejection of his
claim was unreasonable. 28 U.S.C. § 2254(d)(1).
2. Counsel’s apparent failure to advise Cuevas about the duplicative counts at
the plea stage was deficient because it “impinged on [Cuevas]’s ability to enter an
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“An act or omission that is punishable in different ways by different
provisions of law shall be punished under the provision that provides for the
longest potential term of imprisonment, but in no case shall the act or omission be
punished under more than one provision. An acquittal or conviction and sentence
under any one bars a prosecution for the same act or omission under any other.”
Cal. Penal Code § 654(a).
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intelligent, knowing and voluntary plea of guilty,” Lambert v. Blodgett, 393 F.3d
943, 979 (9th Cir. 2004). But it was not prejudicial. Had Cuevas gone to trial, he
would have faced two consecutive life sentences plus at least another 37 years in
prison. We see no “reasonable probability that, but for counsel’s error[],” he would
have taken such a risk. Hill v. Lockhart, 474 U.S. 52, 59 (1985). Accordingly, the
state court reasonably rejected Cuevas’s claim for ineffective assistance of counsel
at the plea stage.
3. On to sentencing. As an initial matter, Daire v. Lattimore, 812 F.3d 766
(9th Cir. 2016) (en banc) (per curiam), held that Glover v. United States, 531 U.S.
198 (2001), clearly established that Strickland applies to non-capital sentencing
proceedings, so we may reach the merits. Just the same, Cuevas is out of luck.
Under California law, counsel could have reasonably concluded that
challenging the duplicative counts at sentencing was at best a non-starter or, at
worst, tantamount to “attacking the validity” of the plea, People v. Cuevas, 187 P.3d
30, 35 (Cal. 2008). A defendant who agrees to a “specified prison term” and is
“sentenced to that term or a shorter one” thereby “abandons any claim that a
component of the sentence violates section 654’s prohibition of double punishment,
unless that claim is asserted at the time the agreement is recited on the record.” Cal.
Rule of Court 4.412(b). A “specified prison term” has been read to include an
agreed-upon sentence set “at or below” a maximum term, lest defendants be able “to
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unilaterally renege on the agreement that was negotiated in good faith with the
prosecutor and accepted by the trial court.” People v. Jones, 158 Cal. Rptr. 3d 786,
794-95 (Ct. App. 2013). Here, the record “clearly reflects” that Cuevas “agreed to a
maximum possible sentence of 37 years eight months,” Cuevas, 187 P.3d at 35.
What is more, challenging duplicative counts in a plea agreement after it has
been accepted is “in substance a challenge to the plea’s validity” under California
law. People v. Shelton, 125 P.3d 290, 296 (Cal. 2006); accord Cuevas, 187 P.3d
at 35; People v. Panizzon, 913 P.2d 1061, 1067 (Cal. 1996). It was reasonable not
to raise a challenge that would have jeopardized the agreement. Accordingly, the
state court reasonably rejected Cuevas’s claim for ineffective assistance of counsel
at sentencing.
4. On direct appeal, the California Supreme Court left no doubt that – under
California law – Cuevas “received what he negotiated and agreed to under the plea
agreement, and he must abide by the terms of the agreement.” Cuevas, 187 P.3d
at 37. And on review of his state habeas petition, it saw nothing that warranted
changing that state of affairs. In light of the above, we see nothing unreasonable
about that decision. See 28 U.S.C. § 2254(d)(1); Harrington v. Richter, 562 U.S.
86, 100 (2011) (according AEDPA deference to summary orders).
AFFIRMED.
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