David Vigil v. Mike McDonald

MEMORANDUM ** 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 habe-as “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, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), establishes the standard by which to evaluate the performance of counsel in noncapital sentencing cases like his own. Id. at 686-87, 104 S.Ct. 2052 (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 *651 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 ... 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, 121 S.Ct. 696, 148 L.Ed.2d 604 (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, 121 S.Ct. 696. 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 Gra-ber concluded that “Strickland applies 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 Gra-ber’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 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. *652 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 clearly established Supreme Court precedent by which to evaluate counsel’s performance in noncapital sentencing cases. 2 AFFIRMED. Footnotes [**] This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3. [1] The Supreme Court recently revisited the Strickland standard in Premo v. Moore, - U.S. -, 131 S.Ct. 733, 738, 178 L.Ed.2d 649 (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 repre *652 senting the accused.” Id. at 742 (citing Strickland, 466 U.S. at 668, 104 S.Ct. 2052) (emphasis added). We question whether Pre-mo 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. [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.