Sophia Daire v. Mary Lattimore

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

SOPHIA DAIRE, No. 12-55667
Petitioner-Appellant,
D.C. No.
v. CV 10-3743-
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

Argued and Submitted
July 10, 2014—Pasadena, California

Filed March 15, 2016

Before: Fortunato P. Benavides,* Kim McLane Wardlaw,
and Richard R. Clifton, Circuit Judges.

Opinion by Judge Benavides

*
The Honorable Fortunato P. Benavides, Senior Circuit Judge for the
U.S. Court of Appeals for the Fifth Circuit, sitting by designation.
2 DAIRE V. LATTIMORE

SUMMARY**

Habeas Corpus

In this appeal from the district court’s denial of a 28
U.S.C. § 2254 habeas corpus petition, the panel (1) reinstated
portions of its March 19, 2015 opinion that are unaffected by
and consistent with the en banc court’s opinion in this case,
which held that 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; (2) modified the March 19, 2015
opinion to reflect that Strickland governs the petitioner’s
claim that she was deprived of effective assistance when her
attorney failed to present evidence of mental illness at
sentencing; and (3) denied the petitioner’s petition for panel
rehearing.

The panel held that the state court’s findings – that trial
counsel’s performance did not fall below an objective
standard of reasonableness and that submission of the
petitioner’s medical evidence would not have changed the
outcome of her Romero hearing – were not unreasonable
applications of Strickland, and that under AEDPA, 28 U.S.C.
§ 2254(d), the federal courts are therefore precluded from
affording relief.

**
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

COUNSEL

Sara J. O’Connell (argued), Covington & Burling, LLP, San
Diego, California, for Petitioner-Appellant.

James William Bilderback, II (argued), Trial Attorney;
Xiomara Costello, Deputy Attorney General; Kamala D.
Harris, Attorney General; Dane R. Gillette and Gerald A.
Engler, Chief Assistant Attorneys General; Lance E. Winters,
Senior Assistant Attorney General; and Kenneth C. Byrne,
Supervising Deputy Attorney General, Office of the Attorney
General of California, Los Angeles, California, for
Respondent-Appellee.

OPINION

BENAVIDES, Circuit Judge:

***

Before addressing the merits of Sophia Daire’s appeal
from the district court’s denial of her petition for writ of
habeas corpus, we give a brief procedural history of the
appeal before our circuit. One of the significant issues raised
by Daire was that, under the Strickland standard,1 her counsel
rendered ineffective assistance at her noncapital sentencing
in California state court. On March 19, 2015, this three-judge
panel affirmed the district court’s denial of Daire’s petition.
Daire v. Lattimore, 780 F.3d 1215 (9th Cir. 2015). In our
opinion, we acknowledged that this Court had “twice

1
Strickland v. Washington, 466 U.S. 668 (1984).
4 DAIRE V. LATTIMORE

previously held that there is no clearly established law, as
required under [the Anti-terrorism and Effective Death
Penalty Act (“AEDPA”), 28 U.S.C. § 2254 (2012),] for a
federal court to provide habeas relief to a state prisoner, that
the Strickland standard applies to sentencing in noncapital
cases.” Id. at 1221 (citing Davis v. Grigas, 443 F.3d 1155,
1158 (9th Cir. 2006), and Cooper-Smith v. Palmateer,
397 F.3d 1236, 1244 (9th Cir. 2005)). We determined we
were bound by those prior opinions. Id. Nonetheless, we
applied the Strickland standard in the alternative, holding that
“[e]ven assuming, arguendo, that Strickland’s applicability is
clearly established, Daire cannot prevail under the review
standard imposed by the AEDPA.” Id. at 1222. Specifically,
after thoroughly analyzing Daire’s claim under the Strickland
standard, “we conclude[d] that the state court’s decision was
reasonable with respect to both prongs of Strickland.” Id. at
1222–29.

Daire then filed a combined petition for panel rehearing
and rehearing en banc. This Court voted to rehear the case en
banc in order to reconsider our circuit precedent, declaring
that our “three-judge panel opinion shall not be cited as
precedent by or to any court of the Ninth Circuit.” Daire v.
Lattimore, 803 F.3d 381 (9th Cir. 2015); Daire v. Lattimore,
— F.3d —, 2016 WL 519027, at *1 (9th Cir. 2016) (en banc).
On February 9, 2016, the en banc court held that “the
Supreme Court has clearly established that Strickland governs
claims for ineffective assistance of counsel in noncapital
sentencing proceedings.” Daire, 2016 WL 519027, at *1.
Accordingly, the en banc court “overrule[d]” all of our
circuit’s “contrary decisions.” Id. The en banc court then
declined “to reach any other issue presented by the parties”
and “return[ed] control of the case to [our] three-judge
panel.” Id. at *2. In doing so, the en banc court said that our
 DAIRE V. LATTIMORE 5

panel “may reinstate [our] prior opinion or issue an amended
opinion.” Id. Lastly, the en banc court instructed us to
resolve the petition for panel rehearing. Id.

Having now received the en banc court’s directive, we
reinstate the portions of our March 19, 2015 opinion that are
unaffected by and consistent with the en banc court’s opinion,
including our analysis of Daire’s claim under the Strickland
standard. We omit only those portions of our prior opinion
that relied on since-overruled precedent, and we modify our
opinion only to reflect that Strickland governs Daire’s
ineffective assistance of counsel claim. With the exclusions
and modifications described above, we reinstate our opinion
and resolve the petition for panel rehearing as follows:

***

Currently serving a forty-year “three strikes” sentence for
first-degree burglary, California Penal Code § 459, the
petitioner argues that she was deprived of effective assistance
when her attorney failed to present evidence of mental illness
at sentencing. Because the state’s adjudication of this claim
was not an unreasonable application of clearly established
federal law, 28 U.S.C. § 2254 (d), we AFFIRM the district
court’s denial of the petition.

I.

Sophia Daire is a 48-year-old woman who has, by all
accounts, led a rather difficult life. Her personal history is an
unfortunate tapestry of poverty, addiction, mental illness, and
incarceration. Interwoven among these dark elements is a
disturbing pattern of violence, with Daire having suffered
6 DAIRE V. LATTIMORE

repeated physical and sexual abuse at the hands of friends,
family members, and unknown assailants.

On September 8, 2006, Daire was charged with first-
degree burglary in violation of § 459 of the California Penal
Code. A neighborhood resident had reported various
possessions missing from his home, including cash, perfume,
clothing, and costume jewelry. Daire was seen wearing the
resident’s missing NFL jersey a few minutes later, but the
more valuable stolen items were not in her possession and
were never recovered. Upon her arrest, Daire denied having
committed any crime, and insisted that she found the jersey
and some of the other stolen property in a nearby garbage bin.
She conceded, however, that she has a rather long history of
similar residential burglaries.

When Daire’s first trial resulted in a hung jury, she was
retried and convicted. At sentencing, Daire admitted to three
prior burglary convictions for the purposes of California’s
“three strikes” recidivism sentence enhancements, id.
§ 667(a)(1). Daire also filed a motion asking the court to
disregard two of these strikes, as permitted by Romero2 and
§ 1385 of the California Penal Code. Although defense
counsel was aware of Daire’s bipolar disorder, neither the
motion nor the subsequent oral argument included any
information about Daire’s mental health. Ruling from the
bench, the court denied the motion, finding a high risk of
continued recidivism and concluding that Daire represents the
kind of “case[] that [the] Three Strikes [Rule] is for.” The
judge then sentenced Daire to forty years, the minimum
permissible sentence in light of her record. A successful

2
People v. Superior Court (Romero), 917 P.2d 628, 13 Cal. 4th 497,
53 Cal. Rptr. 2d 789 (Cal. 1996).
 DAIRE V. LATTIMORE 7

motion could have resulted in a sentence of fewer than ten
years. See Cal. Penal Code § 461.

After unsuccessfully raising various challenges on direct
appeal,3 Daire filed a habeas petition in state court. Daire
argued, inter alia, that counsel had been constitutionally
ineffective by conducting insufficient research into Daire’s
medical history and by failing to use Daire’s bipolar disorder
as a mitigating factor at sentencing. In particular, Daire
asserted that additional research would have revealed that her
condition “can be managed with proper medication and
treatment, probably quite easily.” Under the standard
established in Strickland v. Washington, 466 U.S. 668 (1984),
representation is only constitutionally inadequate if counsel’s
conduct is unreasonable and results in prejudice to the
defendant.

The California Superior Court declined to issue the writ,
rejecting Daire’s argument for two reasons. First, it found
counsel’s performance objectively reasonable in that counsel
had “properly represented Daire throughout [the] matter,” and
had presented the sentencing judge with myriad mitigating
factors at sentencing. See In re Sophia Daire, No. VA
096706, 3–4 (Super. Ct. L.A. Cnty. July 15, 2010)
[hereinafter “State Decision”]. In addition, the court
concluded that the sentence was ultimately unaffected by the
omission of any evidence regarding Daire’s mental health, as
that evidence would not have overcome “her unrelenting
record of recidivism.” Id. at 4–5. The decision was affirmed

3
People v. Daire, No. B201976, 2008 WL 4926956 (Cal. Ct. App. Nov.
19, 2008), review denied, No. S169253 (Cal. Jan. 28, 2009), and cert.
denied, 557 U.S. 905 (2009).
8 DAIRE V. LATTIMORE

without comment by the intermediate court of appeals and by
the California Supreme Court.4

Finding no relief from the state bench, Daire turned to the
federal courts, renewing her ineffective assistance argument
in a petition submitted to the Central District of California.
Under the AEDPA, federal courts may afford habeas relief
from state custody only where a state court’s adjudication of
the same habeas claim was “contrary to, or . . . an
unreasonable application of, clearly established Federal law.”
28 U.S.C. § 2254(d)(1). A magistrate judge found the
AEDPA standard satisfied with respect to the first prong of
the Strickland test. See Daire v. Lattimore, No. CV 10-3743-
DMG(AJW), 2011 WL 7663701 (C.D. Cal. Nov. 10, 2011).
Specifically, the judge found the state court’s analysis of
counsel’s conduct “conclusory and unreasonable,” and that
trial counsel “fail[ed] to present the most persuasive evidence
to support the Romero motion.” Id. at *7 (footnote omitted).
Nevertheless, the magistrate judge recommended denying the
petition after finding that the state court’s adjudication of the
prejudice prong was “neither contrary to, nor an unreasonable
application of, the Strickland standard.” Id. at *8. As a
consequence, the magistrate judge concluded, Daire was “not
entitled to relief on the basis of this claim.” Id.

After reviewing the magistrate judge’s report, the district
court accepted its recommendation only in part. See 2012
WL 1197645 (C.D. Cal. April 9, 2012). Although the district

4
The Superior Court also found the claim procedurally barred. That
argument has not been raised here; however, it appears the procedural bar
was overruled when the California Supreme Court reached the merits of
Daire’s petition. See Trigueros v. Adams, 658 F.3d 983, 991 (9th Cir.
2011).
 DAIRE V. LATTIMORE 9

court agreed that the state court had unreasonably adjudicated
effective assistance, the district court disagreed with the
magistrate judge’s conclusions regarding prejudice. Id. at *1.
Specifically, the district court found that the state courts had
“failed to even consider whether the presentation of mental
health evidence could have made a difference to the
sentencing court.” Id. at *2. The district court explained:

Important to the prejudice assessment, and
not even mentioned in the Superior Court’s
denial of habeas relief, is the fact that when
declaring a mistrial after the first trial ended
with a deadlocked jury, the trial court stated,
“[t]he court could attempt to undercut the
People’s offer, certainly on Romero, and I
think there’s a strong basis for that.” This
statement suggests that the trial court, which
had just heard the evidence presented during
the first trial, was inclined to find a basis for
granting a Romero motion. The Romero
motion ultimately presented to the trial court,
however, failed to include any evidence
regarding petitioner’s severe mental illness,
the effect of that mental condition on her
culpability, and the medical opinion that her
illness was treatable.

This Court finds that the mental illness
evidence omitted by counsel in the Romero
motion . . . potentially explains her drug use
and recidivism, and would have provided the
‘strong basis’ for the Romero motion that the
trial court initially anticipated.
10 DAIRE V. LATTIMORE

Id. at *1–*2 (emphasis in original). The district court,
however, ultimately denied the petition, reluctantly
concluding that binding Circuit precedent precludes relief
from any injustice arising out of ineffective assistance during
noncapital sentencing. Id. at *2 (citing Davis v. Grigas,
443 F.3d 1155 (9th Cir. 2006), and Cooper-Smith v.
Palmateer, 397 F.3d 1236 (9th Cir. 2005)). The district court
then granted a certificate of appealability, encouraging Daire
to seek relief from this Court.

II.

We begin by clarifying the scope of our review. The
district court certified the question of whether Strickland’s
applicability “to the sentencing procedure in a noncapital case
was clearly established federal law” for the purposes of
Daire’s claim. Id. (referring to the standard stated in
28 U.S.C. § 2254(d)(1)).5 Under AEDPA, our review is
limited to “the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). A certificate of appealability must therefore
“indicate which specific issue” implicates that right. Id.
§ (c)(3). The certificate granted here stops short of that
standard, essentially certifying a question of pure legal
theory. However, because we agree with the district court
that Daire’s petition warrants further review, we construe the
certificate as referring to the underlying constitutional issue
raised by petitioner, viz., whether Daire was deprived of
effective assistance when counsel failed to present a mental
health defense at sentencing. That issue subsumes the
narrower question certified by the district court. To whatever

5
The district court properly recognized this was a serious issue, as the
en banc court has now answered that question in the affirmative. Daire,
2016 WL 519027, at *1.
 DAIRE V. LATTIMORE 11

extent the district court did not intend to grant a certificate on
the constitutional issue, we exercise our own authority to do
so. Id. § (c)(1); see also Jones v. Ryan, 691 F.3d 1093, 1095
(9th Cir. 2012) (expanding district court’s certificate of
appealability), cert. denied, — U.S. —, 133 S. Ct. 2831
(2013).

III.

Federal review of habeas petitions from state prisoners is
governed by the AEDPA, 28 U.S.C. § 2254. The AEDPA
allows federal courts to issue a writ only where the petitioner
can show that the state court’s adjudication of the petitioner’s
habeas argument “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 “was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.” Id. § 2254(d). Although the
California Supreme Court denied the petition without
explanation, its decision is nevertheless subject to § 2254
review. See Cullen v. Pinholster, 131 S. Ct. 1388, 1402
(“Section 2254(d) applies even where there has been a
summary denial.” (citing Harrington v. Richter, — U.S. —,
131 S. Ct. 770, 786 (2011))).

In 1984, the Supreme Court established the standard by
which defense counsel’s performance is generally measured.
See generally Strickland, 466 U.S. 668. Strickland involved
a challenge to counsel’s handling of the sentencing phase of
a capital murder case. Id. at 675. The petitioner, having been
sentenced to death after confessing to three heinous murders,
argued that counsel should have explored several mitigation
options and should have presented evidence of mental illness
12 DAIRE V. LATTIMORE

at sentencing. Id. at 672, 675–76. The habeas petition was
adjudicated by the Florida state courts, by the U.S. District
Court for the Southern District of Florida, by the Fifth
Circuit, and by the en banc Eleventh Circuit after that court
split from the Fifth Circuit. Id. at 677–80. Each of these
courts employed a slightly different approach to determining
the effectiveness of counsel’s performance. Id. at 683–84. In
order to ensure a uniform constitutional expectation, the
Court explained that “[i]n any case presenting an
ineffectiveness claim, the performance inquiry must be
whether counsel’s assistance was reasonable considering all
the circumstances.” Id. at 688. With regard to the required
showing of prejudice, the proper standard requires the
defendant to “show that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. at 694. The
Court then applied this newly articulated standard to the case
before it, concluding that counsel’s decisions were part of a
strategy to “rely as fully as possible on respondent’s
acceptance of responsibility for his crimes.” Id. at 699.
Because trial counsel is afforded “wide latitude” in making
these “tactical decisions,” counsel’s performance was
therefore adequate. Id. at 689, 699. And as for the omitted
evidence, the Court concluded that the new material “would
barely have altered the profile presented to the sentencing
judge.” Id. at 700. As a consequence, the petitioner was not
entitled to relief. Id. at 701.

In subsequent cases, “the Supreme Court has clearly
established that Strickland governs claims for ineffective
assistance of counsel in noncapital sentencing proceedings”
as well. Daire, 2016 WL 519027, at *1. Accordingly,
Strickland governs Daire’s claim for ineffective assistance of
counsel in her noncapital sentencing proceeding.
 DAIRE V. LATTIMORE 13

IV.

Daire cannot prevail under the review standard imposed
by the AEDPA. The AEDPA stops just “short of imposing a
complete bar on federal court relitigation of claims already
rejected in state proceedings.” Varghese v. Uribe, 736 F.3d
817, 823 (9th Cir. 2013) (quoting Harrington, 131 S. Ct. at
786), cert. denied, 134 S. Ct. 1547 (2014). “It preserves
authority to issue the writ in cases where there is no
possibility fairminded jurists could disagree that the state
court’s decision conflicts with this Court’s precedents. It
goes no farther.” Harrington, 131 S. Ct. at 786. Therefore,
“[a]s a condition for obtaining habeas corpus from a federal
court, a state prisoner must show that the state court’s ruling
on the claim being presented in federal court was so lacking
in justification that there was an error . . . beyond any
possibility for fairminded disagreement.” Id. at 786–87. The
district court concluded that Daire had met this onerous
standard. We review that conclusion de novo. Hedlund v.
Ryan, 750 F.3d 793, 798 (9th Cir. 2014).

A.

Before turning to the state court’s adjudication of Daire’s
claim, some additional context may be helpful. Daire
contends that she was deprived of effective assistance when
counsel omitted her mental illness from the Romero motion
and subsequent hearing. Prior to trial, counsel had arranged
for a psychiatric evaluation by Dr. Mark E. Jaffe, M.D. Dr.
Jaffe reported preliminary diagnoses of bipolar disorder, anti-
social personality disorder, and substance addiction. He
further noted that Daire had received treatment intermittently
over the years, but “took her medications inconsistently.”
Daire had been in a treatment facility as recently as a few
14 DAIRE V. LATTIMORE

weeks earlier, but moved out after a dispute with another
patient. Id. This was not the first time Daire had
discontinued treatment—the physician reported that “[s]he
has been in several treatment programs but had difficulties
and left.” Dr. Jaffe ultimately concluded that Daire was “too
unstable to live in the community,” and recommended
comprehensive in-patient treatment. Counsel did not provide
Dr. Jaffe with any of Daire’s medical records, and apparently
did not ask for an opinion on Daire’s risk of recidivism.

Three years later, post-conviction counsel provided some
of Daire’s medical records to the same physician. Dr. Jaffe
was asked to clarify his original statements and to estimate
the risk of recidivism in light of Daire’s records. He replied
that Daire’s bipolar disorder was readily treatable, but that

Ms. Daire require[s] confinement in a locked
environment for between one to two years
before being released on parole. . . . [B]y ‘too
unstable to live in the community,’ I meant
that her antisocial impulses were too severe in
combination with her mental illness and
substance abuse, and that she was likely to
commit additional criminal acts in order to
obtain money to buy drugs, unless she had a
period of confinement of between one to two
years . . . [in which] specific treatment
recommendations that I would outline were
followed.

He further reported that Daire had never received proper
medical treatment for her bipolar disorder and that her
substance addiction probably could not be overcome without
 DAIRE V. LATTIMORE 15

such treatment. The remainder of Dr. Jaffe’s post-conviction
letter was largely redundant of his earlier report.

In addition to having Dr. Jaffe review Daire’s records,
habeas counsel asked Daire to draft a statement recounting
her traumatic history and the context of her most recent
offense. Daire indicated that she had been evicted from her
home and raped in the 48 hours before the burglary. She also
complained that trial counsel had not interviewed any of her
friends or family members regarding her character. This
evidence was submitted to the Superior Court with Daire’s
state habeas petition.

B.

The state court’s adjudication of Daire’s claim was not an
unreasonable application of the Strickland standard. Under
the AEDPA, review of counsel’s performance is “doubly
deferential,” requiring both a “highly deferential look at
counsel’s performance,” and additional deference to the state
court’s conclusions regarding that performance. Pinholster,
131 S. Ct. at 1403 (internal quotation marks and citations
omitted); see also Harrington, 131 S. Ct. at 784 (requiring
deference to state court unless there is “no reasonable basis”
for its decision). With respect to Daire’s ineffective
assistance argument, the state court found “no evidence that
Daire’s trial counsel’s performance fell below an objective
standard of reasonableness.” State Decision 3. This was not
an unreasonable application of federal law.

Under California law, an attorney submitting a Romero
motion should investigate a defendant’s “background,
character, and prospects,” and then relay these findings to the
court. People v. Thimmes, 138 Cal. App. 4th 1207, 1213, 41
16 DAIRE V. LATTIMORE

Cal. Rptr. 3d 925, 929 (Ct. App. 2006). The state courts
rejected Daire’s argument after noting that counsel had done
just that, explaining that she submitted a detailed Romero
brief which included “a myriad of individualized
considerations.” State Decision 5 (quoting disposition of
direct appeal, 2008 WL 4926956 at *7). Indeed, between the
written motion and the hearing, counsel referred to Daire’s
poverty, her advanced age, the relatively inconsequential
nature of her criminal record, her encounters with violence
and abuse, and the fact that she was reportedly raped the day
before the burglary. And although counsel never mentioned
Daire’s mental illness itself, she referred to Daire’s seizures
and substance addiction, and emphasized Daire’s need for
intensive treatment. Given the litany of mitigating factors
presented at sentencing, it was reasonable for the state court
to conclude that counsel had satisfied her constitutional
obligation to Daire. See Gonzalez v. Knowles, 515 F.3d 1006,
1015 (9th Cir. 2008) (finding, upon de novo review, the
omission of psychiatric evidence and family testimony
reasonable where counsel presented “a number of mitigating
factors” to judge).

Daire argues that her counsel’s assistance was inadequate
insofar as counsel failed to conduct a more thorough
investigation into Daire’s personal history. Even “less than
complete” research is sufficient under Strickland, however,
so long as “reasonable professional judgments support the
limitations on investigation.” Strickland, 466 U.S. at 691.
The only argument made here is that counsel failed to fully
investigate Daire’s medical history. Yet trial counsel
arranged for Dr. Jaffe’s psychiatric evaluation of Daire in
November of 2006. Based on the resulting report, counsel
was fully justified in choosing not to pursue any additional
information on the subject. A fair reading of the doctor’s
 DAIRE V. LATTIMORE 17

letter is at least as damaging to Daire’s case as it is
mitigating. For example, Dr. Jaffe indicated that Daire has a
violent personality disorder, that she is unpredictable, and
that she has a history of abandoning psychiatric treatment.
The doctor explicitly stated that Daire is “too unstable to live
in the community.” It seems likely that a reasonable attorney
would have recognized how counterproductive additional
research might be, and might have made a strategic decision
not to delve any further into Daire’s psychiatric issues. See
Rompilla v. Beard, 545 U.S. 374, 383 (2005) (“[R]easonably
diligent counsel may draw a line when they have good reason
to think further investigation would be a waste.”).
Accordingly, Daire has not established that the state court’s
determination was unreasonable.

Counsel’s decision not to refer to Daire’s bipolar
diagnosis was equally reasonable. Because there was
apparently not an evidentiary hearing on this issue, we cannot
be certain as to the reason for the omission of a mental health
defense. Nevertheless, we must presume that “the challenged
action might be considered sound trial strategy.” Strickland,
466 U.S. at 689 (internal quotation marks and citation
omitted). After all, Daire’s attorney arranged for the
psychiatric evaluation and report. Accordingly, it seems
counsel would have submitted the evidence that she herself
procured if she thought it would help the case. Review of the
written Romero motion suggests that counsel instead hoped
to persuade the judge by portraying Daire as a misguided but
largely harmless individual:

The court cannot ignore that while Ms. Daire
has continued in her criminal conduct she has
been mostly motivated by her poverty,
homelessness, and drug use. She has chosen
18 DAIRE V. LATTIMORE

homes where largely the residents have not
been present. . . . Only once has her non-
violent conduct turned potentially violent.

Similarly, at the Romero hearing counsel described Daire as
“circumspect” in her burglary, and noted that she has only
taken “things of minimal and nominal value” and only when
the “residences [] were not occupied.” Review of the trial
record confirms that counsel chose to emphasize other
mitigating factors, and apparently made a deliberate decision
not to place Daire’s health at issue. Over the course of the
two trials, neither counsel nor Daire made any mention of her
mental illness. In fact, when prosecutors seemingly alluded
to Daire’s psychiatric issues, defense counsel promptly
objected.6 So the record—far from suggesting that the
absence of medical evidence at sentencing was an oversight
or omission—suggests that the omission was part of a
comprehensive effort to portray Daire as nothing worse than
a petty thief. As a consequence of the elected defense,
counsel could not refer to Daire’s mental health without
undermining her primary argument that Daire was largely
harmless. When evaluating a petitioner’s allegations
regarding an evidentiary omission, we must consider “all the
relevant evidence” that would have been revealed upon
submission—“not just the mitigation evidence.” Wong v.
Belmontes, 558 U.S. 15, 20 (2009) (per curiam) (emphasis
omitted). Under California law, a defendant cannot submit
excerpts of a physician’s letter without disclosing the entire

6
Daire mentioned that on the day of the offense she had been “up for
two days.” Id. When the prosecution asked how she had managed to
“stay[] awake for two days,” defense immediately objected. Id. Counsel
presumably anticipated that Daire’s answer would refer to her cocaine
addiction or her manic episodes, or both.
 DAIRE V. LATTIMORE 19

text to opposing counsel. Cal. Evid. Code § 356. And if
Daire had revealed any “significant part” of a privileged
medical record, she would have lost her privilege as to the
remainder. Id. § 912(a). So counsel could not—as the
district court implied—simply isolate the most sympathetic
aspects of Daire’s health to submit at trial and sentencing.

For example, if counsel had used excerpts of Dr. Jaffe’s
letter to argue that medical treatment would lower the risk of
recidivism, prosecutors almost certainly would have
countered with Daire’s history of abandoning treatment
programs. Even worse, Dr. Jaffe reported that Daire showed
anti-social tendencies and noted that her bipolar disorder
results in manic fits of violence. During the psychiatric
evaluation, Daire admitted several prior violent outbursts that
included stabbing a friend with a butcher knife and assaulting
a homeless man just “for fun.” She also apparently tried to
burn her family’s house down. This is hardly the behavior
one would expect from a harmless and “circumspect”
individual. Yet if counsel had put Daire’s mental health at
issue, this ignominious resumé would have become fair game
for the prosecution’s use at trial and at sentencing.

We do not mean to belittle Daire’s medical condition or
suggest that her history is anything other than unfortunate. It
seems likely that any violent disposition or mental illness
Daire has is related to the shocking abuse Daire suffered as a
child and young adult. As Dr. Jaffe himself stated, “[l]ike
many women who are addicted to drugs and serve prison
time, the defendant has an extensive history of trauma.” So
it is possible that—as the district court concluded—counsel
would have been better off adopting an alternate strategy.
Perhaps instead of trying to characterize Daire as harmless
and non-violent, counsel should have conceded the violent
20 DAIRE V. LATTIMORE

psychiatric disorders and then argued that those disorders
could be overcome with proper intervention. The law,
however, does not permit us to second-guess the trial
attorney’s strategy. Instead, “every effort [must] be made to
eliminate the distorting effect of hindsight.” Strickland,
466 U.S. at 689. We must therefore resist the temptation “to
conclude that a particular act or omission was unreasonable”
simply because it “proved unsuccessful” at trial. Id.

For that reason, we cannot assume, as the district court
did, that the mental health records provided “the most
persuasive evidence to support the Romero motion.” Daire,
2011 WL 7663701, at *7. Our precedent is clear that where
a defendant’s psychiatric history is both mitigating and
incriminating, trial counsel is best positioned to determine
how to incorporate a diagnosis into the defense.7 And as we
have explained, informed counsel “need not present a defense
just because it [is] viable.” Mickey, 606 F.3d. at 1238. Here,
although we cannot be certain as to why the psychiatric
evidence was omitted, the record as a whole suggests that
Daire’s attorney devised an informed defense and a
reasonable mitigating strategy, and that is all the Constitution
requires.

7
See Wong, 558 U.S. at 18 (recognizing counsel’s right “to proceed
cautiously, structuring his mitigation arguments and witnesses to limit
[the] possibility” that opposing counsel will gain access to damaging
evidence); Mickey v. Ayers, 606 F.3d 1223, 1238–39 (9th Cir. 2010)
(holding that omitting a mental health defense was reasonable where
psychiatric records contradicted other elements of defense and would have
“opened the door” to incriminating issues); Hendricks v. Calderon,
70 F.3d 1032, 1037 (9th Cir. 1995) (finding reasonable a counsel’s
decision to forgo mental health defense where it was not particularly
persuasive and would have revealed criminal history).
 DAIRE V. LATTIMORE 21

C.

The state court found an absence of prejudice in denying
Daire’s claim. “An error by counsel, even if professionally
unreasonable, does not warrant setting aside the judgment of
a criminal proceeding if the error had no effect on the
judgment.” Strickland, 466 U.S. at 691. It is therefore not
sufficient for Daire to simply argue that the omitted evidence
might have made her Romero motion stronger. In order to
prevail before the state habeas court, Daire needed to
demonstrate a “reasonable probability” that submission of
additional medical evidence would have resulted in a
successful motion and a concomitantly reduced sentence. Id.
at 694. In other words, the alleged failure must have been
egregious enough to “undermine confidence” in the outcome
of the proceeding. Id. Although some jurists might find this
standard satisfied, the state court’s contrary conclusion was
not unreasonable.

Daire was sentenced in accordance with California’s so-
called “three strikes” rule, which “consists of two nearly
identical statutory schemes designed to increase the prison
terms of repeat felons.” Rios v. Garcia, 390 F.3d 1082, 1084
(9th Cir. 2004) (quoting Romero, 917 P.2d at 630, 13 Cal. 4th
at 504, 53 Cal. Rptr. 2d at 791) (punctuation revised). The
statutes have minor differences, but both provide that when
a defendant is convicted of a felony, and the state proves that
the defendant has committed certain prior felonies, the
defendant is subject to greatly enhanced sentencing
requirements. Id. at 1085; see also Cal. Penal Code
§§ 667(c), 1170.12(a). There is, however, an exception to the
rule. If a defendant so moves, a judge may disregard a prior
felony under “extraordinary” circumstances. People v.
Carmony, 92 P.3d 369, 376, 33 Cal. 4th 367, 378, 14 Cal.
22 DAIRE V. LATTIMORE

Rptr. 3d 880, 889 (Cal. 2004). Before doing so, the judge
must determine that the defendant lies “outside the spirit” of
the scheme such that he “should be treated as though he had
not previously been convicted of one or more” of the strikes.
Id. (quoting People v. Williams, 948 P.2d 429, 437, 17 Cal.
4th 148, 161, 69 Cal. Rptr. 2d 917, 948 (Cal. 1998)). To
prevail on one of these “Romero” motions, a defendant must
overcome the “strong presumption that any sentence that
conforms to these sentencing norms is both rational and
proper.” Id. As a consequence, denial of a Romero motion
is generally the expectation, not the exception. Here, as a
fourth-strike defendant, Daire needed the judge to disregard
two of her three prior felonies to even be eligible for a lesser
sentence. She therefore faced a considerable burden at the
Romero hearing.

After reviewing the omitted evidence, we find reasonable
the state court’s conclusion regarding prejudice. Daire’s
medical history includes an ambiguous set of mitigating and
incriminating factors. The sentencing judge rejected Daire’s
request for leniency after concluding that she is, essentially,
an unrepentant recidivist: “[T]here is a substantial career of
criminality in this defendant’s background . . . . She has never
been out for very long before she re-offends . . . .” The court
on direct appeal apparently agreed with this characterization,
finding no abuse of discretion and obliquely referring to
Daire as having an “unrelenting record of recidivism.” Daire,
2008 WL 4926956, at *7. Indeed, in addition to the three
residential burglary convictions, Daire’s record includes
convictions or arrests for loitering, tampering, possession of
controlled substance, possession of narcotics, assault
resulting in bodily injury, vehicular theft, and parole
violations. Id. As the Superior Court tersely observed, it
 DAIRE V. LATTIMORE 23

seems Daire only avoids trouble with the law when she is in
prison. See State Decision 6.

Daire argues that she was prejudiced in that the judge
received no information regarding the possibility that she
could be rehabilitated with proper medical treatment for
bipolar disorder. Regrettably, this argument is belied by the
proffered evidence itself. Not only does her medical history
not undermine the risk of recidivism, it only underscores the
extent to which rehabilitation is unlikely. Although Dr. Jaffe
observed that Daire could perhaps be “easily” reformed with
in-patient treatment, the record indicates a clear pattern of
abandoning treatment programs. For example, she left one
program because she did not like living in a facility alongside
men, and left another after an altercation with a fellow
patient. In fact, Dr. Jaffe himself concluded that Daire
needed to be in a “locked environment” because she was
“likely to commit additional criminal acts.” He further
cautioned that medical professionals could only effectively
treat Daire if she chose to remain “clean and sober.” Yet the
doctor made no comment as to the extent of that commitment
on Daire’s part. Perhaps most damaging to Daire’s argument
is the fact that she was apparently undergoing treatment and
taking her medications at the time of the most recent offense.
Consequently, it was not unreasonable for the state court to
conclude that “[e]ven if the trial court would have heard more
argument concerning Daire’s drug use, psychological issues,
and childhood, Daire’s sentence would not have been any
different.”8

8
State Decision 4. It is not insignificant that the magistrate judge and
district court judge disagreed as to whether this omission resulted in
prejudice. Although the two judges arrived at contrary conclusions, they
both provided carefully reasoned and legally defensible arguments in
24 DAIRE V. LATTIMORE

We note, in addition, significant discrepancies in the
letters provided by the consulting physician. In the original
interview, Daire told Dr. Jaffe that she was taking Depakene
at the time of the offense, and that she was being treated at a
public health clinic. Depakene is a prescription medication
used to treat manic episodes in bipolar patients. See
Physicians’ Desk Reference 417–22 (61st ed. 2007). Daire
indicated that she had originally been prescribed that
medication while living at Tarzana Treatment Center, and
that it made her feel “mellow” and more stable. In the 2010
letter requested for habeas purposes, Jaffe contradicted his
original letter, reporting no “indication that she was
prescribed medications for Bipolar disorder while in the
[Tarzana] program.” This statement is puzzling, given
Daire’s contrary testimony and considering that the Tarzana
discharge record—a copy of which was given to Jaffe—
clearly lists a diagnosis of “296.62 bipolar disorder,” and
states that Daire was “medicated and compliant while in the
unit.” We need not resolve these factual discrepancies today.
Nevertheless, the inconsistencies render more reasonable the
state’s conclusion regarding prejudice. In fact, the Strickland
Court itself dealt with a similar discrepancy, ultimately
finding “no reasonable probability that the omitted evidence
would have changed the conclusion” at sentencing, and
noting that the inconsistencies “might even have been
harmful” to the defense. See Strickland, 466 U.S. at 676–77,
699.

Daire nevertheless tries to demonstrate prejudice by
characterizing this particular judge as sympathetic to her

support of their respective positions. Under such circumstances, we
would be hard-pressed to find the state’s decision unreasonable. See
Harrington, 131 S. Ct. at 786–87.
 DAIRE V. LATTIMORE 25

cause. She points to a comment in the mistrial transcript
regarding the weakness of the prosecution’s case, specifically
that “the court could attempt to undercut the people’s offer,
certainly on Romero, and I think there’s a strong basis for
that.” But this comment implies little or nothing about the
actual adjudication of the Romero motion, which was handled
by a different judge.9 Moreover, the merits of the motion had
not yet been presented, so the mistrial judge might well have
felt differently after reviewing the submissions. Daire also
takes the sentencing judge’s comments out of context by
describing the Romero outcome as a “close” call. That
characterization is belied by the record. The judge
mistakenly thought the sentence would be fairly “close” (i.e.,
substantially the same) regardless of whether she granted the
motion. Yet even after counsel emphasized how lengthy a
three-strikes sentence would be, the judge nevertheless chose
to deny the motion and impose the forty-year sentence. Id.
So there is little indication that awareness of Daire’s bipolar
disorder might have somehow tipped the balance in Daire’s
favor. Indeed, given that the judge was unpersuaded by an
eviction and reported rape within 48 hours of the offense, it
seems unlikely that Daire’s dual-edged diagnosis—or
anything else, for that matter—would have moved the court
to leniency.

Finally, a recent Romero appeal supports the state court’s
conclusion that the motion would have been denied
irrespective of the proffered mitigating evidence. See
generally People v. Miller, No. H037246, 2013 WL 6710724
(Cal. Ct. App. 2013) (unpublished). The Miller court

9
Judge Michael A. Cowell handled the original trial, and Judge
Margaret Miller Bernal presided over the retrial and subsequent
sentencing.
26 DAIRE V. LATTIMORE

considered a direct appeal involving an individual quite
similar to Daire. The defendant had committed three
robberies to support his substance addiction, which he
described as his “biggest challenge” in life. Id. at *1 & n.3.
In seeking Romero relief from a three-strikes sentence, the
defendant pointed out that he suffered from an untreated
mental illness and that none of his offenses had been very
serious. Id. at *1. He urged leniency, arguing that he was
“homeless,” “severely depressed,” and in need of medical
help. Id. In opposing the motion, prosecutors used those
very same factual predicates to argue that defendant was
prone to recidivism and simply “unable to live a sober, stable,
or productive life.” Id. Agreeing with the prosecution and
deeming the defendant a threat to public welfare, the
sentencing judge denied the motion. Id. at *2. The appellate
court affirmed, noting that Romero “does not compel a trial
court to dismiss a prior strike simply because factors exist
that may justify doing so,” and emphasizing that “there
continues to be a strong presumption that sentences that
conform to the sentencing norms set forth under the Three
Strikes law are both rational and proper.” Id. at *6 (citing
Carmony, 92 P.3d at 376, 33 Cal. 4th 367, 378, 14 Cal. Rptr.
3d 880, 889).

The parallels between Miller and Daire are readily
apparent. In broad strokes, the only qualitative difference in
their respective Romero arguments was that Miller’s motion
incorporated a mental health defense. And yet Miller’s
motion was denied in the same manner Daire’s was. We do
not mean to overstate Miller’s implications for the present
dispute, as even a perfectly analogous case could not possibly
reveal how Daire’s Romero motion would have been resolved
in light of her unique psychiatric history. Nevertheless, the
Miller decision supports the state court’s conclusion that
 DAIRE V. LATTIMORE 27

submission of Daire’s medical evidence would not have
changed the outcome of the Romero hearing. Accordingly,
we cannot say that there is no reasonable basis for that
decision. Harrington, 131 S. Ct. at 784.

V.

For the reasons stated, we conclude that the state court’s
decision was reasonable with respect to both prongs of
Strickland. The federal courts are therefore precluded from
affording the requested relief. 28 U.S.C. § 2254(d)(1).
Accordingly, the petition for writ of habeas corpus must be
denied.

Daire’s motion for leave to file an enlargement to the
petition for panel rehearing is denied, and Daire’s petition for
panel rehearing is denied.

AFFIRMED.