Sophia Daire v. Mary Lattimore

812 F.3d 766

9th Cir.

2016

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Docket

Sophia DAIRE, Petitioner-Appellant, v. Mary LATTIMORE, Warden, Respondent-Appellee.

No. 12-55667

United States Court of Appeals, Ninth Circuit

Feb. 9, 2016

Submitted En Banc Jan. 12, 2016

766

Before: SIDNEY R. THOMAS, Chief Judge, STEPHEN REINHARDT, M. MARGARET MCKEOWN, RICHARD C. TALLMAN, JOHNNIE B. RAWLINSON, JAY S. BYBEE, CONSUELO M. CALLAHAN, CARLOS T. BEA, N. RANDY SMITH, MARY H. MURGUIA and PAUL J. WATFORD, Circuit Judges.

Sara J. O‘Connell, Covington & Burling LLP, San Diego, CA, for Petitioner-Appellant. Kamala D. Harris, Attorney General of California; Dane R. Gillette, Chief Assistant Attorney General; Lance E. Winters, Senior Assistant Attorney General; Kenneth C. Byrne, Supervising Deputy Attorney General; Xiomara Costello, Deputy Attorney General, Los Angeles, CA, for Respondent-Appellee.

manded to the district court for resentencing.

VACATED and REMANDED for resentencing.

* The en banc court unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

OPINION

PER CURIAM:

We voted to rehear this case en banc to reconsider our circuit precedent holding that there was no “clearly established” federal law on the question of whether Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), governs claims for ineffective assistance of counsel in noncapital sentencing proceedings. See Cooper-Smith v. Palmateer, 397 F.3d 1236, 1244 (9th Cir.2005) and Davis v. Grigas, 443 F.3d 1155, 1158 (9th Cir.2006).

In this case, a California jury convicted Daire of first-degree burglary. Daire claimed that, during sentencing, her attorney provided ineffective assistance of counsel under the standard articulated in Strickland, 466 U.S. at 687, 104 S.Ct. 2052. On federal habeas review, applying our binding circuit precedent, the district court held that the application of the Strickland standard to noncapital sentencing proceedings was not “clearly established Federal law” for purposes of 28 U.S.C. § 2254(d)(1).

In Glover v. United States, 531 U.S. 198, 202-04, 121 S.Ct. 696, 148 L.Ed.2d 604 (2001), the United States Supreme Court applied Strickland to a noncapital sentencing proceeding. Glover presented the question whether “a showing of prejudice; in the context of a claim for ineffective assistance of counsel, requires a significant increase in a term of imprisonment.” Id. at 204, 121 S.Ct. 696. The claim in Glover arose from noncapital sentencing proceedings governed by federal guidelines. Id. at 200, 121 S.Ct. 696. The Supreme Court reversed the Seventh Circuit for “supplant[ing] the Strickland analysis” in such a context. Id. at 203, 121 S.Ct. 696. In closing, Glover noted that “the ultimate merits of [petitioner‘s] claim” would turn on Strickland‘s elements: “the question of deficient performance” and “prejudice flow[ing] from the asserted error in sentencing.” Id. at 204, 121 S.Ct. 696.

To the extent that there was any doubt that Glover “clearly established” that Strickland applied to noncapital sentencing proceedings, that doubt was erased in Lafler v. Cooper, 566 U.S. 156, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012). In Lafler, the Supreme Court stated that Glover: establish[ed] that there exists a right to counsel during sentencing in ... noncapital cases. Even though sentencing does not concern the defendant‘s guilt or innocence, ineffective assistance of counsel during a sentencing hearing can result in Strickland prejudice because “any amount of [additional] jail time has Sixth Amendment significance.” Lafler, 132 S.Ct. at 1385-86 (second alteration in original) (citations omitted) (quoting Glover, 531 U.S. at 203, 121 S.Ct. 696).

Given Glover and Lafler, the Supreme Court has clearly established that Strickland governs claims for ineffective assistance of counsel in noncapital sentencing proceedings.¹ See also Premo v. Moore, 562 U.S. 115, 126, 131 S.Ct. 733, 178 L.Ed.2d 649 (2011) (“Whether before,

during, or after trial, when the Sixth Amendment applies, the formulation of the standard [for deficient performance, as an element of ineffective assistance of counsel] is the same: reasonable competence in representing the accused.“) (quoting Strickland, 466 U.S. at 688, 104 S.Ct. 2052). Therefore, we overrule our contrary decisions on which the district court relied—namely, Cooper-Smith, Davis, and all of our other decisions that are similarly to the contrary.

We voted to rehear this case en banc in order to reconsider our circuit precedent. We decline as an en banc court to reach any other issue presented by the parties. While the three-judge panel that heard the appeal was bound by Cooper-Smith and Davis and issued its opinion based on that assumption, it nonetheless applied Strickland in the alternative. In issuing our order granting rehearing en banc, we instructed that the three-judge panel opinion should not be cited as precedent by or to any court of the Ninth Circuit. Daire v. Lattimore, 803 F.3d 381 (9th Cir.2015). With this correction in the law, we return control of the case to the three-judge panel. The panel, at its election, may reinstate its prior opinion or issue an amended opinion. The three-judge panel will also resolve the petition for panel rehearing on the merits. En banc proceedings with respect to this case are terminated.

REMANDED.

Notes

Indeed, we implicitly recognized as much in a pair of decisions issued after the Supreme Court decided in 2001 but before the California Supreme Court rejected Daire‘s ineffective assistance claim on the merits in 2011. See (applying to a noncapital sentencing ineffective assistance claim and granting petitioner an evidentiary hearing); see also (applying to a noncapital sentencing ineffective assistance claim where petitioner argued that his attorney failed to investigate potentially mitigating evidence of mental illness and did not call his family members to testify on his behalf).

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