                                                                              FILED
                           NOT FOR PUBLICATION                                OCT 28 2011

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                           FOR THE NINTH CIRCUIT


DAVID VIGIL,                                     No. 10-16792

              Petitioner - Appellant,            D.C. No. 3:09-cv-04994-THE

  v.
                                                 MEMORANDUM*
MIKE MCDONALD,

              Respondent - Appellee.


                   Appeal from the United States District Court
                      for the Northern District of California
              Thelton E. Henderson, Senior District Judge, Presiding

                     Argued and Submitted September 2, 2011
                            San Francisco, California

Before: BERZON and BYBEE, Circuit Judges, and WHELAN, Senior District
Judge.**




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Thomas J. Whelan, Senior U.S. District Judge for the
United States District Court for the Southern District of California, sitting by
designation.
      David Vigil appeals the district court’s denial of his 28 U.S.C. § 2254

habeas corpus petition. We have jurisdiction under 28 U.S.C. § 2253, and we affirm.

      Vigil argues that his trial counsel’s failure to present mitigating evidence at

his sentencing hearing was constitutionally ineffective assistance of counsel. To

succeed with his habeas petition, Vigil must first show that the state court’s denial

of habeas “involved an unreasonable application of[] clearly established Federal

law, as determined by the Supreme Court of the United States.” 28 U.S.C. §

2254(d)(1). Vigil claims that Strickland v. Washington, 466 U.S. 668 (1984),

establishes the standard by which to evaluate the performance of counsel in

noncapital sentencing cases like his own. Id. at 686–87 (holding that ineffective

assistance of counsel is shown by deficiency in trial counsel’s performance that

prejudices the defense).

      Strickland, however, only defines the standard to evaluate counsel in capital

sentencing cases and according to our case law, since deciding Strickland, “the

Supreme Court has not delineated a standard which should apply to ineffective

assistance of counsel claims in noncapital sentencing cases.” Davis v. Grigas, 443

F.3d 1155, 1158 (9th Cir. 2006) (emphasis added); see also Cooper-Smith v.

Palmateer, 397 F.3d 1236, 1244 (9th Cir. 2005) (“[I]n Strickland, the Court

expressly declined to consider the role of counsel in an ordinary sentencing, which


                                          2
. . . may require a different approach to the definition of constitutionally effective

assistance.” (alteration in original) (internal quotation marks omitted)).

      Vigil asserts that both Davis and Cooper-Smith are wrong because the

Supreme Court extended the Strickland standard to noncapital sentencing cases in

Glover v. United States, 531 U.S. 198 (2001), thereby establishing federal law that

the state court misapplied. In Glover, the Supreme Court considered whether a

sentence that was between 6 and 21 months higher than it should have been due to

attorney error constituted prejudice to the criminal defendant. See Glover, 531

U.S. at 200. The Glover court looked to Strickland to analyze whether the

defendant had been prejudiced by the alleged error. Id. (“We must decide whether

[an increased prison sentence as a result of attorney error] would be ‘prejudice’

under Strickland v. Washington.”).

      Vigil finds support for his argument in Judge Graber’s concurrence in Davis.

There, despite agreeing with the majority that the panel was bound by our decision

in Cooper-Smith, Judge Graber questioned whether Cooper-Smith was correct that

there was no clearly established federal law applicable to noncapital sentencing

cases after Glover, which she read as applying “Strickland to a noncapital

sentencing proceeding.” Davis, 443 F.3d at 1159 (Graber, J., concurring). Based

on her understanding of Glover, Judge Graber concluded that “Strickland applies


                                           3
to a noncapital sentencing that is ‘formal’ and involves findings or conclusions that

provide a standard for the imposition of sentence.” Id. Citing Judge Graber’s

concurrence, Vigil argues that because his sentencing hearing falls within Judge

Graber’s definition of a noncapital sentencing case subject to review because his

hearing was formal and required the sentencing court to apply defined standards,

Davis and Cooper-Smith are not binding here. Vigil also attempts to reconcile

Davis and Cooper-Smith with Glover by arguing that because the sentencing

hearings in both Davis and Cooper-Smith occurred before the Supreme Court

decided Glover, neither sentencing court was compelled by Glover to apply

Strickland.

      Davis and Cooper-Smith, however, are not limited in the way that Vigil

suggests. In fact, although decided after Glover, Davis declared that “since




                                          4
Strickland, the Supreme Court has not delineated a standard” that should apply to

noncapital sentencing cases. Davis, 443 F.3d at 1158 (emphasis added).1

      We are bound in the circumstances of this case by our decisions in Davis

and Cooper-Smith until either we reverse them en banc or the Supreme Court

clearly holds to the contrary. See Hart v. Massanari, 266 F.3d 1155, 1171 (9th Cir.

2001) (“Once a panel resolves an issue in a precedential opinion, the matter is

deemed resolved, unless overruled by the court itself sitting en banc, or by the

Supreme Court.”). Until then, those cases stand for the proposition that there is no




      1
        The Supreme Court recently revisited the Strickland standard in Premo v.
Moore, 131 S. Ct. 733, 738 (2011). Although Premo applies Strickland in the
context of counsel’s performance in assessing a plea bargain, id., statements in
Premo indicate that Strickland might apply in all contexts. The Premo court
identified Strickland as “the standard for inadequate assistance of counsel under
the Sixth Amendment” without caveat. Id. And later, when discussing the
application of Strickland, the Court revisited this idea: “Whether before, during, or
after trial, when the Sixth Amendment applies, the formulation of the standard is
the same: reasonable competence in representing the accused.” Id. at 742 (citing
Strickland, 466 U.S. at 668) (emphasis added). We question whether Premo is
sufficient to call into question our decisions in Davis and Cooper-Smith. Whether
or not Premo is sufficient to call into question our prior decisions, it does not
control the outcome here because it was decided after the state court decided
Vigil’s habeas petition and therefore was not clearly established law the state court
was bound to apply.

                                          5
clearly established Supreme Court precedent by which to evaluate counsel’s

performance in noncapital sentencing cases.2

      AFFIRMED.




      2
        Even if Strickland were clearly established federal law applicable to Vigil’s
sentencing hearing, the state court reasonably applied Strickland to conclude that
Vigil was not prejudiced by counsel’s performance. The state court reasonably
determined that “the nature of [Vigil’s] threat [to kill the victim] and the fear
instilled in the victim [are] the same” regardless of whether Vigil used a knife or
not. And Vigil’s lengthy criminal record, intolerance of authority, and “dim”
prospects for rehabilitation—all considered by the sentencing court and state
habeas court—support the conclusion that even had Vigil’s counsel introduced
evidence that called into question the presence of a knife, it would not have caused
the sentencing court to strike one of Vigil’s prior convictions.

                                          6
