                     FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 SOPHIA DAIRE,                                    No. 12-55667
                   Petitioner-Appellant,
                                                    D.C. No.
                     v.                          2:10-cv-03743-
                                                   DMG-AJW
 MARY LATTIMORE, Warden,
             Respondent-Appellee.                   OPINION


        Appeal from the United States District Court
           for the Central District of California
          Dolly M. Gee, District Judge, Presiding

                    Submitted En Banc
          January 12, 2016*—Pasadena, California

                     Filed February 9, 2016

     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.

                      Per Curiam Opinion


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

                           SUMMARY**


                          Habeas Corpus

    The en banc court held that given the holdings in Glover
v. United States, 531 U.S. 198 (2001), and Lafler v. Cooper,
132 S. Ct. 1376 (2012), the Supreme Court has clearly
established that Strickland v. Washington, 466 U.S. 668
(1984), governs claims for ineffective assistance of counsel
in noncapital sentencing proceedings.

     The en banc court overruled this court’s decisions that are
to the contrary, declined to reach any other issue presented by
the parties, and returned control of the case to the three-judge
panel.


                             COUNSEL

Sara J. O’Connell, Covington & Burling LLP, San Diego,
California, 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, California, for
Respondent-Appellee.




  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                   DAIRE V. LATTIMORE                       3

                         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 (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. 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 (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.
The claim in Glover arose from noncapital sentencing
proceedings governed by federal guidelines. Id. at 200. The
Supreme Court reversed the Seventh Circuit for
“supplant[ing] the Strickland analysis” in such a context. Id.
at 203. In closing, Glover noted that “the ultimate merits of
4                      DAIRE V. LATTIMORE

[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.

    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, 132 S. Ct. 1376 (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).

    Given Glover and Lafler, the Supreme Court has clearly
established that Strickland governs claims for ineffective
assistance of counsel in noncapital sentencing proceedings.1


  1
    Indeed, we implicitly recognized as much in a pair of decisions issued
after the Supreme Court decided Glover in 2001 but before the California
Supreme Court rejected Daire’s ineffective assistance claim on the merits
in 2011. See Tilcock v. Budge, 538 F.3d 1138, 1146 (9th Cir. 2008)
(applying Strickland to a noncapital sentencing ineffective assistance
claim and granting petitioner an evidentiary hearing); see also Gonzalez
v. Knowles, 515 F.3d 1006, 1015 (9th Cir. 2008) (applying Strickland to
a noncapital sentencing ineffective assistance claim where petitioner
argued that his attorney failed to investigate potentially mitigating
                       DAIRE V. LATTIMORE                              5

See also Premo v. Moore, 562 U.S. 115, 126 (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). 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.




evidence of mental illness and did not call his family members to testify
on his behalf).
