Daire v. Lattimore

• Decision Date: 09 February 2016
• Docket Number: No. 12–55667.,12–55667.
• Parties: Sophia DAIRE, Petitioner–Appellant, v. Mary LATTIMORE, Warden, Respondent–Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

812 F.3d 766

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

No. 12–55667.

United States Court of Appeals, Ninth Circuit.

Submitted En Banc Jan. 12, 2016.^*
Filed Feb. 9, 2016.

812 F.3d 766

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.

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.

812 F.3d 767

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...