Defendant was not entitled to specific performance of her plea agreement where she repudiated the plea by withdrawing it. In 1984, Fox entered into a negotiated plea deal and pleaded guilty in California to second degree murder. She was sentenced to 15 years to life in prison. Five years later, she successfully petitioned the superior court to withdraw her plea on the basis the trial court failed to inform her that she would be on lifetime parole as a consequence of her plea. Prior to her retrial for first degree murder with a special circumstance, she sought to enforce the original plea and her motion was denied. She was tried and convicted and received an LWOP sentence. In a federal habeas petition, she claimed the state denied her due process by failing to enforce her initial plea agreement, which provided she would be paroled after serving seven and one-half years in prison. The district court denied her petition, noting she moved to withdraw her plea before she was eligible for parole and therefore the state did not breach the agreement. Fox appealed. Held: Affirmed. For purposes of the court’s analysis, it assumed Fox had a due process right to specific performance of her original plea deal and that the State breached that promise. Nevertheless, it found Fox voluntarily chose to withdraw her plea, voiding the agreement. Because Fox did not seek to enforce the plea prior to repudiating it, there is no plea to enforce and she was not denied due process.

Application of state contract law does not entitle Fox to specifically enforce the original plea she voluntarily withdrew. Under California law “rescission extinguishes a contract, rendering it void ab initio, as if it never existed.” By filing a petition and obtaining a writ to ify her plea agreement, Fox voided the terms of the plea. Contrary to Fox’s claims, the State did not force the rescission of the plea by breaching it. Nothing prevented Fox from seeking to enforce the plea rather than withdrawing it. Fox’s claim that she never waived her right to assert a breach of the plea agreement comes too late; this should have been asserted before she withdrew the plea.

The full opinion is available on the court’s website here: https://cdn.ca9.uscourts.gov/datastore/opinions/2016/08/08/13-56704.pdf