                FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

JOHNNY LEE DAVIS,                         No. 05-15211
            Petitioner-Appellant,
               v.                           D.C. No.
                                         CV-00-00949-JCM
GEORGE GRIGAS,
                                            OPINION
            Respondent-Appellee.
                                    
       Appeal from the United States District Court
                for the District of Nevada
        James C. Mahan, District Judge, Presiding

                 Argued and Submitted
      February 13, 2006—San Francisco, California

                  Filed April 10, 2006

  Before: Cynthia Holcomb Hall, Barry G. Silverman, and
             Susan P. Graber, Circuit Judges.

                Opinion by Judge Hall;
              Concurrence by Judge Graber




                          3965
                        DAVIS v. GRIGAS                      3967


                          COUNSEL

Jason F. Carr, Assistant Federal Public Defender, Las Vegas,
Nevada, for the appellant.

Victor-Hugo Schulze, II, Senior Deputy Attorney General,
Las Vegas, Nevada, for the appellee.


                           OPINION

HALL, Senior Circuit Judge:

   Johnny Lee Davis appeals the district court’s denial of his
28 U.S.C. § 2254 habeas corpus petition. Davis pleaded guilty
to attempted murder with the use of a deadly weapon and was
sentenced to two consecutive fifteen-year prison terms. He
argues that his trial counsel’s failure to investigate and present
3968                    DAVIS v. GRIGAS
mitigating evidence at his sentencing hearing was constitu-
tionally ineffective assistance of counsel. The Nevada state
courts and the district court denied his habeas petition. We
have jurisdiction pursuant to 28 U.S.C. § 2253. We reverse
and remand.

             I.   Facts and Procedural History

   On September 10, 1997, Davis lured the mother of his two
children to the desert outside of Las Vegas, Nevada, shot her
six times, and left her for dead. Ultimately she did not die, but
was instead paralyzed from the waist down. Davis was
arrested a short time later and charged with attempted murder
with a deadly weapon, and with being an ex-felon in posses-
sion of a firearm.

   At the request of his trial counsel, Jennifer Haight, Davis
underwent a psychiatric evaluation to determine his compe-
tency to stand trial. The evaluator concluded that Davis was
competent to stand trial. However, the evaluation report noted
that Davis reported a rough past. He claimed to have begun
using drugs and alcohol at the age of fourteen, and at the time
of the evaluation admitted to still using both. Davis also
reported two prior suicide attempts, stating that he had been
“messed up in the head” since an accident that left him with
severe head trauma at the age of two. He reportedly experi-
enced auditory hallucinations for several years prior to the
shooting, with voices telling him to kill and hurt people.

   On March 4, 1998, Davis pleaded guilty, pursuant to a writ-
ten plea agreement, to attempted murder with the use of a
deadly weapon. The plea agreement specified a sentencing
cap of six to fifteen years for attempted murder, with a sepa-
rate but equal sentencing cap of six to fifteen years for the use
of a deadly weapon enhancement.

  Davis’s sentencing hearing was held on April 22, 1998.
The government argued that Davis should be sentenced to two
                        DAVIS v. GRIGAS                    3969
fifteen-year terms, the high end of the sentencing cap stipu-
lated to in the plea agreement. Davis’s counsel, Haight, erro-
neously told the court that Davis had stipulated to two fifteen-
year terms, when in fact he had only stipulated to what was
in the written plea agreement: two six- to fifteen-year sentenc-
ing caps. Haight made no argument for a lower sentence and
presented no mitigating evidence. The judge sentenced Davis
to two consecutive fifteen-year terms.

   After an untimely direct appeal was dismissed for lack of
jurisdiction, and after Haight withdrew as his counsel, Davis
filed a petition for habeas corpus in Nevada state court, alleg-
ing ineffective assistance of counsel and “manifest injustice
involving the tribunal.” Davis argued that Haight was ineffec-
tive because she failed to investigate his psychological prob-
lems and failed to present mitigating evidence at sentencing.
The state district court denied Davis’s petition.

   Davis appealed to the Nevada Supreme Court where, in
addition to the ineffective assistance of counsel claim, he
argued that the district court erred in denying his petition
without conducting an evidentiary hearing to allow him to
present the relevant mitigating evidence. The court dismissed
Davis’s appeal, holding that he failed to allege specific facts
that would entitle him to relief. In its opinion, the Nevada
Supreme Court also misstated the plea bargain—just as
Haight had at Davis’s sentencing hearing—stating that Davis
had stipulated to two six- to fifteen-year sentences, when in
fact Davis had only stipulated to two six- to fifteen-year sen-
tencing caps.

   On November 9, 2001, Davis filed his first amended peti-
tion for habeas corpus in federal district court. He alleged
only one ground for relief: that Haight rendered ineffective
assistance at sentencing because she did not investigate or
present mitigating evidence. The magistrate judge’s report
recommended that Davis’s petition be denied on the merits
because he could not show that prejudice resulted from
3970                   DAVIS v. GRIGAS
Haight’s deficient performance. The district court adopted the
magistrate judge’s report and recommendation, and denied
Davis’s petition.

                       II.   Discussion

  We review de novo the district court’s decision to deny a
28 U.S.C. § 2254 petition. Cooper-Smith v. Palmateer, 397
F.3d 1236, 1242 (9th Cir.), cert. denied, 126 S. Ct. 442
(2005). In conducting that review, we look to “the last rea-
soned state-court decision.” Van Lynn v. Farmon, 347 F.3d
735, 738 (9th Cir. 2003). We may grant a writ of habeas cor-
pus only if the state court proceedings

     (1) resulted in a decision that was contrary to, or
     involved an unreasonable application of, clearly
     established Federal law, as determined by the
     Supreme Court of the United States; or

     (2) resulted in a decision that was based on an
     unreasonable determination of the facts in light of
     the evidence presented . . . .

28 U.S.C. § 2254(d).

A.     Section 2254(d)(1): Clearly Established Supreme
       Court Precedent

   To establish a basis for relief on this ground, Davis must
first show that there is “clearly established Federal law, as
determined by the Supreme Court of the United States.” 28
U.S.C. § 2254(d)(1). He must then show that the state court
decision was contrary to, or involved an unreasonable appli-
cation of, that Supreme Court precedent. Id. In their briefing,
both Davis and the government assume that Strickland v.
Washington, 466 U.S. 668 (1984), is the clearly established
Supreme Court precedent controlling ineffective assistance of
counsel claims.
                       DAVIS v. GRIGAS                    3971
   [1] However, as we have previously recognized, the Strick-
land Court “expressly declined to ‘consider the role of coun-
sel in an ordinary sentencing, which . . . may require a
different approach to the definition of constitutionally effec-
tive assistance.’ ” Cooper-Smith, 397 F.3d at 1244 (quoting
Strickland, 466 U.S. at 686). Moreover, since Strickland, the
Supreme Court has not delineated a standard which should
apply to ineffective assistance of counsel claims in noncapital
sentencing cases. Id. Therefore, as we said in Cooper-Smith,
there is no clearly established federal law as determined by
the Supreme Court in this context. Id.

   [2] We note that, even though the Strickland standard does
not by necessity apply to the noncapital sentencing context,
the Nevada courts were nonetheless free to adopt that stan-
dard for use in this context, as they appear to have done. Id.
However, because there is no clearly established Supreme
Court precedent that applies to this context, we are unable to
grant Davis habeas relief on this ground.

B.   Section 2254(d)(2): Unreasonable Determination of
     the Facts

   “[A] decision adjudicated on the merits in a state court and
based on a factual determination will not be overturned on
factual grounds unless objectively unreasonable in light of the
evidence presented in the state-court proceeding.” Miller-El v.
Cockrell, 537 U.S. 322, 340 (2003). Davis argues that the
Nevada Supreme Court based its decision, in part, on its erro-
neous understanding that he stipulated to the sentence he
received.

   [3] In his written plea agreement, Davis stipulated to two
six- to fifteen-year sentencing caps. However, at his sentenc-
ing hearing, Davis’s attorney erroneously told the court that
he had stipulated to two fifteen-year terms. This error was not
only adopted by the Nevada Supreme Court, but also provided
part of the basis for its denial of Davis’s habeas petition.
3972                    DAVIS v. GRIGAS
Therefore, the Nevada Supreme Court’s decision was based,
at least in part, on an unreasonable determination of the facts,
and so Davis may be entitled to relief under § 2254(d)(2). On
this basis we reverse the district court’s denial of Davis’s
habeas petition, and remand to the district court for an eviden-
tiary hearing to allow Davis to present the mitigating evidence
that his attorney failed to present at sentencing.

                      III.   Conclusion

   Davis does not qualify for habeas relief under § 2254(d)(1)
because there is no clearly established Supreme Court prece-
dent governing ineffective assistance of counsel claims in the
noncapital sentencing context. However, he may be entitled to
relief under § 2254(d)(2) because the Nevada Supreme Court
based its decision on an erroneous understanding that Davis
stipulated to the sentence he received. Therefore, we
REVERSE and REMAND to the district court to hold an
evidentiary hearing.



GRABER, Circuit Judge, concurring:

   I concur fully in the majority’s opinion. I write separately
only to question whether Cooper-Smith v. Palmateer, 397
F.3d 1236, 1244 (9th Cir.), cert. denied, 126 S. Ct. 442
(2005), was correct in holding broadly that the Supreme Court
has failed to explain what standard applies to claims of inef-
fective assistance of counsel in the context of a noncapital
sentence.

   In Glover v. United States, 531 U.S. 198 (2001), the Court
applied Strickland v. Washington, 466 U.S. 668 (1984), to a
noncapital sentencing proceeding in which the defendant
received a term of imprisonment. In a unanimous opinion, the
Court held that a 6- to 21-month increase in the defendant’s
sentence fulfilled the “prejudice” prong at the second step of
                        DAVIS v. GRIGAS                      3973
the Strickland test. Glover, 531 U.S. at 202-04. Indeed, “any
amount of actual jail time has Sixth Amendment signifi-
cance.” Id. at 203. Because the Seventh Circuit had bypassed
the first analytical step of Strickland, id. at 202, Glover’s case
was remanded for reconsideration of, among other issues,
whether Glover’s counsel was deficient for failing to argue
for grouping of the money laundering counts under the Sen-
tencing Guidelines, id. at 205.

   Additionally, I read Strickland itself simply to be discuss-
ing the way in which professional competence is to be judged
in an informal setting, rather than to be suggesting that the
usual two-part test does not apply. “For purposes of describ-
ing counsel’s duties,” 466 U.S. at 687, the Court said that the
usual criteria for an adversarial trial apply with respect to cap-
ital sentencing because of its trial-like nature. What the Court
did not have to consider was only “the role of counsel in an
ordinary sentencing, which may involve informal proceedings
and standardless discretion in the sentencer, and hence may
require a different approach to the definition of constitution-
ally effective assistance.” Id. at 686. The Court did not sug-
gest, though, that the basic Sixth Amendment principles
embodied in its decision do not apply to noncapital sentencing
proceedings. Rather, it left open a specific description of
counsel’s duties in an “informal” setting where “standardless
discretion” prevails.

   In my view, the best way to read the Supreme Court’s two
cases together is to say that Strickland applies to a noncapital
sentencing that is “formal” and that involves findings or con-
clusions that provide a standard for the imposition of sen-
tence. I disagree with Cooper-Smith to the extent that it
considers the foregoing principle not to be clearly established
federal law as determined by the Supreme Court, 28 U.S.C.
§ 2254(d)(1).
