He Fought the Law and the Law Won: Probable Cause Defeats First Amendment Claim for Retaliatory Arrest

Nieves v. Bartlett, No. 17-1174.  May 28, 2019.


Bartlett was arrested at a ‘raucous’ Arctic Man sports gathering following his initial refusal to speak with officers and subsequent discussion about an underage attendee. He was perceived by police to be aggressive. Bartlett sued the police under 42 U.S.C. Section 1983, claiming that the arrest was in retaliation for his exercise of First Amendment rights.

The Court noted that the question whether probable cause precludes retaliation claims in official policy cases has been left open.  Redress for deprivation of First Amendment rights may be sought if no non-retaliatory basis for official action exists. The critical question is one of “but-for” causation.  No action may proceed unless retaliation has governed any adverse action.

A retaliatory motive will not defeat official action if the official action would have occurred without the retaliatory motive.  Retaliatory arrest claims fail if no probable cause for arrest is shown. A defendant can success only if he or she can show arrest would follow even in the absence of probable cause.

The “no probable cause” rule will not preclude action where a claimant can show that others who were not engaged in protected speech were not arrested. If a vocal critic of police is arrested for jaywalking but others not engaged in protected speech are not arrested, a case can proceed.

In this case, the officer who observed Bartlett’s verbal aggression and body language could conclude a fellow officer was being challenged and perceived the existence of probable cause to arrest.  This defeats the First Amendment retaliation claim.

The Court agreed on the case outcome:  a plaintiff in a retaliatory arrest claim must show not just that retaliatory motive existed but that retaliatory motive caused the arrest.  

The Court was far from agreement on the finer points of its rule.  

Justice Thomas wrote separately to express wariness of the creation of an exception to the “no probable cause” rule, finding this holding to be without precedent in First Amendment jurisprudence.

Justice Gorsuch wrote to express concern that an “exuberant” criminal justice system would permit almost anyone to be arrested for something.  Deference to expansion of extensive state power would inhibit the exercise of constitutionally protected speech. In language certain to be quoted, he wrote:  “If the state could use these (expansive)laws not for their intended purposes but to silence those who voice unpopular ideas, little would be left of our First Amendment liberties, and little would separate us from the tyrannies of the past or the malignant fiefdoms of our own age.”

If probable cause cannot by itself defeat a First Amendment claim, and if there is no such requirement in the case law, then adding such a “no probable cause” requirement is a matter better suited for the legislature.  

To borrow from Fourth Amendment wrongful arrest claims to add requirements to first Amendment retaliation claims wanders too far.  Even if “arrest” is a common factor in both instances, Fourth and First Amendment protections are materially distinct.

Where the absence of probable cause is not an absolute requirement for a retaliation claim nor its presence a guarantor of defeat, probable cause is not irrelevant and may be important to establishing causation.  Determinations such as the Court has made in this case should await a more elaborately developed record and presentation.

Justice Ginsburg has dissented in part, noting that the absence of arrest authority can interfere with expression of speech and press rights. The breath of the majority ruling requesting establishment of lack of probable cause makes only baseless arrests actionable, thereby creating opportunities to abuse the exercise of protected rights.  

Justice Ginsburg would require that civil plaintiffs demonstrate unconstitutional animus as a motivating factor in arrest actions. Defendants may show that any resulting adverse action would have been taken without retaliation. The case before the court is not the proper cause to use to enlarge the potential for individuals and the press to be subjected to polices suppression.

Justice Sotomayor has observed that the Court has correctly determined that probable cause alone will not always defeat a First Amendment claim, but criticizes the needless annunciation of a rule which would allow probable cause to defeat retaliation claims unless others were not treated similarly. There is no need to separate First Amendment retaliatory arrest claims from other First Amendment Retaliation claims. There is no basis for the Court’s “mix and match” approach to constitutional law. The majority has determined, without substantial reason, that the law will benefit more from using comparators as evidence of motivations than it will from other forms of proof.  

Justice Sotomayor expressed fear that those who are more easily the objects of police scrutiny — citizen journalists, perhaps — will suffer arrest in the exercise of protected rights. Moreover, obscuring or defining away the role of statements and motivations further opens the door to abuse.

17-1174 Nieves v. Bartlett (05_28_2019)

The (Jurisdictional) Fat Lady Had Already Sung; Supreme Court Holds Dismissal of Social Security Claim as Untimely at Appellate Council Level was Final for Purposes of Seeking Federal Judicial Review

Smith v. Berryhill, Acting Commissioner of Social Security, No. 17-1606. May 28, 2019.


Smith spent considerable time and effort making his way through three layers of review of his disability claim, including participating in administrative law judge proceedings. However, at the fourth level of appellate review his claim was dismissed as untimely. There was dispute concerning the Social Security Administration’s receipt of the request for appellate review.. Yet when Smith sought review in federal court, his claim was again dismissed because the federal court agreed with the agency’s view that the dismissal for untimeliness was not final for purposes of seeking federal court review.  The Court of Appeals for the Sixth Circuit agreed. After much effort, Smith would be without remedy.

Although Justice Sotomayor characterized this case as somewhat routine, in many respects it is anything but. The Supreme Court in this case has warned that federal agencies such as the Social Security Administration are not sole arbiters of their own authority.  An Agency cannot require multiple layers of review, including a hearing, and then call dismissal at the fourth level non-final, thereby precluding federal review. Add to this that the government confessed error in its earlier interpretations of the law, requiring appointment of special counsel to represent the government.  

While observing that the Administrative Procedures Act and agency exhaustion of remedies requirements are not identical, the Court underscored that an agency may not serve as an unreviewable arbiter of compliance with its own administrative steps.  This is particularly so where, as in this case, exhaustion is not a jurisdictional prerequisite.

While no doubt the government will make mistakes, the Court was not persuaded by any “floodgates” argument arising because of such errors.  The Court stressed that just because federal jurisdiction property could include a merits determination rather than remand, courts would do well to tread lightly in that regard, as the entire structure of administrative review is intended to permit all concerned to benefit from agency expertise.  

It would be unwise to speculate as to how far interpretations of this case might stretch. It is fair to say, however, that the case will stand for the proposition that a federal agency administering its own programs cannot create a citadel of its of procedures, leaving claimants without remedies while insulating the agency from review.

Smith v. Berryhill 17-1606_868c

The Old Concrete Cross: Humanists and Traditionalists Square Off Before U.S. Supreme Court to Argue Over Fate of World War I Memorial

The American Legion v. The American Humanist Association, No. 17-1717, combined with Maryland-National Capital Park and Planning Commission v. The American Humanist Association, No. 18-18. Oral argument February 27, 2019.


Nearly a century ago the families of soldiers who died in service during World War I collectively funded the creation and display of a forty foot tall concrete Latin Cross bearing the soldiers’ names, engraved words commemorative of honorable service such as “valor.”  The state of Maryland, through its Parks and Planning Commission, assumed titular ownership of the memorial some decades ago in order to support the upkeep of the Peace Cross, as the Bladensburg memorial is known, as it is fragile and may present hazards should parts of the cross crumble.  The Bladensburg Cross is currently installed along a state highway. It is unavoidably visible to drivers and passers-by.

The American Humanist Association and like minded entities complain that the acts of the state’s ownership, placement, and maintenance of the Bladensburg Cross violate the Establishment Clause.  As they are offended by the sight of what is in their perception a religious sculpture installment, the humanists assert that they have suffered injury sufficient to obtain judicial redress.

The United States Court of Appeals for the Fourth Circuit agreed with the humanists.  

Traditionalists — whether religious groups, advocacy groups, or military-related entities, are deeply concerned by the Fourth Circuit’s decision and fear that if the decision is permitted to stand then the fate of all war memorials bearing religious symbols throughout the nation will be in jeopardy.  

In addition to seeking reversal of the federal appellate decision, the traditionalists ask the Supreme Court to dispense with the Establishment Clauses analysis found in Lemon v. Kurtzman,  403 U.S. 602 (1971), as the three part test, proceeding as it does, in their view, from a predominantly secularizing standpoint, has not withstood the test of time. The petitioners ask the Court to return to the meaning of the Establishment Clause as it was envisioned at the founding of the nation, with a view toward custom and practice.

Petitioners ask with equal force that the Court reject the notion of “offended observer” standing, asserting that recognizing emotional reactions to passive public displays fails to articulate the concrete injury required for federal court jurisdiction.

The ordinary observer –offended or not — cannot fail to notice the cultural rifts underlying this dispute.  Humanists, by their own accounts, would enjoy greater peace of mind were they not reminded of religions in their daily encounters with the government, symbolic or real.  The presence of signs and symbols of Christianity — of which the Latin Cross is the defining icon — provokes a sense of exclusion from life in the public square. In light of the emergence of the nation as one embracing many faiths and many cultures, the humanists see no reason for continuing reminders of a religion that ought never be presented as being in control.  

Traditionalists, on the other hand, fear the destruction of  individual and collective memory and the loss of the nation’s history should monuments be razed in the name of the Establishment Clause.  To them, government involvement in the preclusion of religion is as offensive as any government involvement in its establishment.

If the cultural clash did not provide enough with which to grapple, the subtext of the legitimacy of originalism is in play as well, as that is what looking to the intent of the Framers is all about.  Textual analysis is of course a time honored and enduring legal tool, with much to recommend it, but the larger question is whether textual analyses and historical references will suffice to carry the day in disputes arising two centuries after the nation’s founding, subsequent to massive cultural, technical, and political change. Not the least of these changes by any means are changes to the Constitution itself, which, following reconstruction and later amendments, leave the nation’s principal governing document no longer as it originally was.

In addition to the principal parties, there are scholars, religious entities, special interest advocates, policy groups, veterans, states and local governments, and others who have weighed in as amici.  With the abundance of effort that has been expended to present this matter to the Court, one may hope that the Court will recognize that this may not be a case in which incrementalism will be a prudent response.

Links to principal parties’ memoranda as well as a guide to amicus submissions are set forth below.

Merits Briefs

20181217160935389_17-1717 American Legion Brief

20181217164050705_18-18 Maryland National Park and Planning Brief

20190123152713265_37350 pdf AHA Final Brief 1-23-19

20190213163922725_17-1717 American Legion Reply Brief

20190213120308294_18-18 Maryland National Capital Park Reply Brief

Joint Appendix

20181217164536737_Peace JA – Volume I

20181217164544300_Peace JA – Volume II

20181217164556003_Peace JA – Volume III

20181217164614847_Peace-JA-Volume-IV

Summary of Amicus Submissions

2019 02 24 Amicus Submissions AL v AHA 17-1717

 

 

 

 

 

Supreme Court Holds California’s Regulation of Pro-Life Pregnancy Centers Fails First Amendment Review

National Institute of Family and Life Advocates, d/b/a NIFLA, et al. v. Becerra, Attorney General of California, et al., No. 16-1140 (June 26, 2018).


California Requires Pro-Life Pregnancy Clinics to Provide Information About Abortion Access. California enacted legislation requiring that state licensed crisis pregnancy centers provide clinic visitors with notice, including telephone contact information, that the state provides free or low cost services, including abortion. California also required unlicensed clinics to provide notice of their unlicensed status. The California Reproductive Freedom Accountability, Comprehensive Care and Transparency Act (FACT Act) imposes its notice requirements only on pro-life entities, as state sponsored or non-pro-life clinics are excepted.

The Pro-Life Entities Failed to Persuade the Lower Federal Courts. Petitioners unsuccessfully sought federal injunctive relief in on First Amendment grounds, a result affirmed by the Ninth Circuit Court of Appeals, which held that petitioners could not demonstrate a likelihood of success on the merits where the licensed notice requirements met the low level of scrutiny attaching to “professional speech” and the unlicensed notice requirements satisfied any level of scrutiny

The Ninth Circuit’s characterization of the statute as regulating “professional speech” permitted avoidance of the strict scrutiny mandated by presumptively unconstitutional content based speech restrictions.

The Supreme Court Disagrees. The Supreme Court has concluded that the petitioners can likely succeed on the merits of their claims, has reversed the judgment of the Ninth Circuit, and has remanded the matter for further proceedings.

The concern is the speech, not the speaker. The Supreme Court observed that the Court has never recognized this new category of “professional speech” subject to less rigorous review. States may regulate professional conduct even if such regulation incidentally burdens speech. Deferential review has not, however, turned on who is speaking, but on the factual nature of disclosures concerning commercial matters.

The Supreme Court concluded that the FACT Act had little to do with regulation of professional conduct but instead regulated speech as such. While the Court refused to foreclose the potential to recognize professional speech at another time, the Court observed that the dangers of speech regulation — that the government will use its power to suppress disfavored ideas — applies to “professional speech.” An inability to discuss good information,or the distortion of information, or the provision of bad information, while particularly deadly in medical settings, easily can be seen as diminishing the “marketplace of ideas” in which robust discussion ultimately serves the truth.

Rights as significant as those guaranteed by the First Amendment cannot depend on professional licensure. Permitting such limitations would provide the state with a tool that could be wielded to promote invidious discrimination against unpopular ideas.

Even if “professional speech” were recognized, the Court’s conclusion would not change, as the statute could not survive intermediate scrutiny, being “wildly under-inclusive” because of its application, after unsupported exclusions, only to pro-life entities. California could have addressed its concerns about information itself without burdening any private speech.

“Maybe” Measures Disfavored. The Court found California failed to meet its burden of establishing that the unlicensed status notice addressed anything other than a hypothetical harm, an unacceptable result. Broad prophylactic measures risk chilling protected speech. Nothing suggested that women were unaware of clinics’ licensure status. Notice of the absence of licensure was not needed for services for which licensure was not required.

Even had a justification for the measures been found, the state cannot compel non-state speakers to adopt a government script that unduly burdens speech. The Court found California’s distinctions among services between the license and unlicensed notice requirements to be odd. The FACT Act affects the speech of some speakers, but not others, a disfavored result, and occupies space already addressed by the state licensure regulations The detailed parameters and specifics of the notice requirements underscore the state-imposed burden, particularly as they threaten to drown out a clinic’s own chosen message.

Justice Kennedy Warns of the Dangers of the Authoritarian State. Justice Kennedy joined the majority opinion in full, applauding the Court’s restraint in making its determination without addressing the viewpoint discrimination issue presented. The Court’s determination on other grounds in no way intimates that the law would be acceptable had a broader base and broader coverage been employed. The design and structure of the act embodies viewpoint discrimination and exemplifies the threat presented when the government seeks to supplant individual speech, thought, and expression. The state’s intent — to compel speech contrary to deeply held beliefs — coupled with its apparent targeting of beliefs disfavored by the state — is far from “forward thinking” but instead illustrates the ills of authoritarian government, avoidance of which was and is a cornerstone of the Constitution.

Ill at Ease with the Majority’s Reasoning, the Dissent Fears a Cascade of New Challenges. Justice Breyer and three others foretell the doom of many disclosure regulations as a result of the Court’s decision. Justice Breyer and his colleagues question why, if information must be provided to obtain informed consent, information cannot be required to be provided about available services and licensure status.

NIFLA v. Becerra, No. 16-1140 June 26, 2018

Junk in the Trunk? Officers’ Search Based on Car Rental Agreement Violates the Fourth Amendment, Supreme Court Concludes

Byrd v. United States, No. 16-1371 (S. Ct.) (May 14, 2018).


Something seemed amiss in petitioner Byrd’s driving, according to Pennsylvania State Troopers who stopped him and, on discovering that he was not an authorized driver of the rental vehicle he occupied, searched the trunk, where 49 bricks of heroin and body armor were found.  The federal district court in Pennsylvania and the Third Circuit Court of Appeals denied Byrd’s motion to suppress the fruits of an unlawful search, observing that Byrd’s failure to be shown on the contract as an authorized driver of the rental car negated any expectation of privacy.

The Supreme Court has disagreed, holding that the expectation of privacy that is central to determinations of whether searches comport with the Fourth Amendment cannot be destroyed by tangential questions such as the insurance consequences of permitting an unauthorized driver to operate a rental car.

Freedom from unreasonable searches and seizures is essential to liberty, the Court observed, reflecting on the Framers’ concern with the indignities of general warrants that, among other matters, precipitated rebellion against the Crown.  

While privacy expectations in an automobile may be diminished, the more salient question is whether any search violates a Fourth Amendment interest, which requires examination of privacy interests, which need not, but certainly may be, grounded in common law property concepts.  While an individual need not have a common law property interest in a place to be searched to claim an expectation of privacy, it does not follow that legitimate presence alone confers Fourth Amendment rights. While not susceptible of precise and exhaustive definition, the Court observed that privacy expectations must come from outside the Fourth Amendment, either through property concepts or through societal recognition.  

Thus where rights of exclusion attach to possession or control, reasonable expectations of privacy flow from those rights of exclusion, and this principle controls the outcome for Byrd.

The Court declined to indulge either party’s “always” or “never” arguments concerning the rights of unauthorized drivers, finding the parties’ positions to be too broad or too restrictive.

A legitimate presence in an automobile will not of necessity confer a legitimate interest in prohibiting a search of a glove compartment, the Court has previously held, but from this it does not follow that Byrd had only the interests of a passenger, which he would have been had the authorized driver been behind the wheel.   In the Court’s earlier case, the Court recognized an interest in mere presence but the accused in that case did not argue that presence included an interest in freedom from search of the connects of the vehicle.

The exercise of dominion and control, and the right to exclude, are critical determinants that exist without respect to restrictions in the rental agreement, which has little bearing on the driver’s expectation of privacy, a point agreed to by the government.

Although the Court’s property and contract analysis might have provided some comfort to Byrd, the victory of recognition of his privacy interests at the Supreme Court does not conclude the matter.  Notwithstanding dominion and control, and rights of exclusion, was Byrd’s status, because of potential subterfuge in arranging the rental, no better than that of a thief, which would vitiate all expectations of privacy?  Were the officers in possession of sufficient information to believe that at the car contained evidence of a crime, thereby legitimizing a warrantless search under established automobile exceptions case law?

Both questions remain for future development on remand.

One concurring justice noted that the majority would have done well to be more definite in determining when an automobile might fairly be said to be an “effect” for Fourth Amendment purposes, to which privacy expectations might attach.    Another would not disregard the rental agreement nor the circumstances obtaining the rental as sources of information bearing on the availability of a Fourth Amendment claim.

Byrd v. United States, No. 16-1371. S.Ct. May 14, 2018

(Un)Fair Notice? California’s Reproductive Services Notice Legislation Faces Opposition Before the United States Supreme Court

National Institute of Family and Life Advocates v. Becerra, et al., No. 16-1140 (S. Ct.).  Oral argument scheduled for March 20, 2018.


California has enacted legislation intended to notify women of the availability of aid in accessing contraception or abortion services.  Article 2.7, Reproductive Freedom, Accountability, Comprehensive Care, and Transparency (FACT) Act, 123470 to 123473. California Code (2018 Edition). The statute appears to apply widely. However, through a series of exemptions, the FACT Act actually requires only that pregnancy centers that are not medically licensed by the state provide notice of that status to clients and that pregnancy centers that do not offer abortion provide notice to clients about available services and how to access those services.

Pregnancy centers and their advocates are challenging the FACT Act in the United States Supreme Court, demanding that the Court hold the FACT Act unconstitutional in violation of the First Amendment as it, in their view, compels speech contrary to the purpose of the pregnancy centers..  The pregnancy centers sense that they have been compelled to advertise for that which they find contrary to conscience. California and its supporters demur, arguing, among other matters, that the FACT Act is a neutral generally applicable law deserving of no special constitutional protection even if it imposes a minor burden in compliance with its provisions.  Moreover, this general law does not discriminate on the basis of pregnancy center’s points of view concerning abortion. In the state’s view, petitioners are not hampered in their ability to speak nor does the provision of the notice the state requires constitute an endorsement.

Both parties contest the proper standard of judicial review:  Petitioners argue strict scrutiny is required, while the state argues a more lenient standard ought to apply, as in the state’s view, the act may be analogized to state regulation of commercial speech.  

Petitioners decry what they foresee as adverse consequence if a lesser standard of review is adopted: petitioners see this as opening the door state regulation of speech in unprecedented, and unwelcome, forms.   The state’s supporters argue that the public must know and in particular pregnant women must be made aware, of choices during pregnancy, particularly as, in their view, pregnancy centers are not clear in their purposes, and that the time-sensitive results of not being fully informed about choices can be life altering.

If the instant case were not challenging enough, amici remind the court that similar issues are percolating in lower federal and in state courts.  Whether the Supreme Court will be impressed by a recent Fourth Circuit opinion disfavoring notice requirements similar to those in issue here is impossible to predict.  The Court has no obligation to follow the reasoning of an inferior court yet neither need the Court ignore a determination that does not square with the Ninth Circuit opinion that paved the way for the Supreme Court to grant certiorari in this case.

Contentiousness concerning reproductive issues does not appear to have diminished in the decades following the Supreme Court’s recognition of privacy interests attaching to such decisions in Griswold v. Connecticut  381 U.S. 479 (1965) and Roe v. Wade,  410 U.S. 113 (1973 ).  Time appears only to have amplified such concerns, perhaps not without good cause, as technology has evolved to aid in health choices but with it has come new dimensions of choices to be encountered at the beginning and end of life.  Interstitial legal arguments over enunciated and implied First Amendment guarantees have ensued, and continue. The professionalization of views on reproductive matters is readily apparent upon even a cursory review of the number of advocacy organizations submitting as amici in this case.

There is little doubt that oral argument will be lively.  In anticipation thereof, the merits briefs are linked below.  An overview of amicus submissions is also attached. The principal briefs were obtained through ScotusBlog, a site without which there would be general unawareness of developments at the Supreme Court.  The overview of amicus submissions is Just Lawful Blog’s own.


20180108123359506_2018.01.08 NIFLAvB Brief of Petitioners FINAL

20180108124518914_2018.01.08 NIFLAvB Joint Appendix FINAL

20180116184704477_16-1140npacUnitedStates

20180220120759477_16-1140 Brief For Respondent

20180220155129758_2018.02.20.ussc.16-1140.jak.state_resp_merits_brief

20180313112437769_2018.03.13 NIFLAvB MERITS Reply Brief

20180316160703572_16-1140 BS Letter

NIFLA v. Becerra, No. 11-1160 Amicus Submissions 2018 03 18

Power and Process: Supreme Court Distinguishes Jurisdictional and Statutory Limitations

Hamer v. Neighborhood Legal Services of Chicago, No. 16-658, 583 U.S. ____ (November 8, 2017).


Determining the time for initiating appeal ought to be perfectly clear, such that no party need fear forfeiture of rights because of untimely filing of a notice of appeal.  

Not so!  Where both statutory substance and procedural rules provide incongruent time limitations for filing appeals, or for relief from those limitations, legal catastrophe may ensue.  

While there may be some leniency available if a procedural (“mandatory claims processing”) rule is involved, failure to conform to a jurisdictional measure will forfeit appeal.  

The Supreme Court has reiterated in Hamer that only Congress can confer jurisdiction on federal courts.  Accordingly, where Congress has provided by statute a time limitation for filing an appeal, that provision is jurisdictional.  Failure to adhere to jurisdictional statutory limits is fatal to appeal.  Where a court lacks power to adjudicate a matter, no relief can be granted.

In contrast, courts may arrange the order of their affairs through procedural rules for processing claims.  Those rules are not jurisdictional and may, at times, be relaxed as circumstances may require.

Practitioners may find this guidance of some assistance, but no one with any sense would rest easy without scouring both statutes and rules to determine and to document decisions about appellate procedure.

16-658 Hamer v Neighborhood Legal Services 2017 11 08

Crime, Punishment, and Cognitive Decline: Inability to Recall Crime Insufficient to Stay Execution

Dunn v. Madison,  No. 17-193, 583 U.S. ___ (November 6, 2017).


Madison sought relief from execution because several strokes made it impossible for him to recall the crime for which he faced the death penalty. Experts found that he had lost some capacities as a result of strokes, Madison understood he had been convicted of a crime and had been sentenced to death.

The Supreme Court denied relief.  The Court observed that it is well established that it would violate the Eighth Amendment to execute anyone who lacked capacity to understand the nature of the proceedings.  Here, however, execution would not offend the Constitution because, although Madison lost event-specific memory, Madison knew he had been convicted and faced execution.  

Dunn v Madison 17-193 2017 11 06

 

Deal or No Deal? Supreme Court Reverses Recognition of Original Contractual Remedies Where Plea Agreement Superseded

Kernan v. Cuero, No. 16-1468, 583 U.S. _____ (November 6, 2017).


Cuero was charged with following an automobile accident that caused serious bodily harm to a pedestrian. The accident occurred while Cuero was on parole: he was operating a vehicle without a license, was under the influence of methamphetamine, and was in possession of a small firearm.

Cuero executed a plea agreement that recited prior convictions and provided a fourteen year prison term, a fine, and parole.

California then determined that one of Cuero’s prior convictions counted as a ‘strike’ under that state’s ‘three strikes’ law. The state sought and obtained leave to amend the criminal complaint Cuero was permitted to withdraw his plea, and later entered into a new agreement that provided a prison term of twenty five years to life.

Cuero then sought habeas corpus relief to enforce the original plea agreement through specific performance. The Ninth Circuit Court of Appeals granted Cuero contractual relief.

The Supreme Court reversed, finding no clearly established federal law had been violated which would support relief under the Anti-terrorism and Effective Death Penalty Act of 1996, P.L. 104-132. No decision could be found supporting the equitable contractual remedy sought in connection with a plea agreement.

Kernan v Cuero 16-1468 2017 11 06