F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

S O P H I A D A I R

E , Petitioner-Appellant

,

v

.

M A R Y L A T T I M O R

E , W arden Respondent-Appellee

. N o. 12-55667

D.C. No. CV 10-3743- DMG(AJ W )

OPI NI ON

A ppeal from the United States District Court for the Central District of California Dolly M. Gee, District J udg e, Presiding

Arg ued and Submitted J uly 10, 2014—Pasadena, California

F iled March 19, 2015

B efore: F ortunato P. B enavides, * Kim McL ane W ardlaw,

a nd Richard R. Clifton, Circuit J udg es.

Opinion by

J udg e B enavides

* T h e Ho n o rab l e F o r t u n a to P

. B en av id es, Sen io r Circu it J u d g e f o r th e U.S. Co u rt o f

A p peals f o r th e Fif th Circu it, sittin g b y

d esig n atio n

.D A I R E V

. L A T T I M O R

E 2

SUMMARY * *

Habeas Corpus

The panel affirme d the district court’s denial of a 28 U.S.C. § 2254 habeas c orpus petition broug ht by California
state prisoner Sophia Daire, who is serving a 40- y e ar “three strikes” sentence for first-deg ree burg lary

.

Daire arg ued that she was deprived of effective assistance because her attorney f

ailed to p resent e v idence of mental illness i n h er Romero motion a sking the sentencing court to disreg ard two of h er str i k es. The panel held that even

as s u m i n g , arguendo

, that the applicability of Strickland v

. W ashington to noncapital sentencing is clearly es t a blished such that federal courts can a fford relief from a state court’s flawed a pplication of Strickland in that contex t, Daire cannot prevail under the review standard imposed b y AEDPA. The panel held that the state court’s finding s – that trial counsel’s perf o r m a n c e d id not fall below an objective standard o f reasonableness and that submission o f Daire’s medical evidence would not have chang ed the outcome of her Romero hearing – were not unreasonable applications of federal law.

** T h is su m m ary co n stitu

t es n o p ar t o f t h e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.D A I R E V

. L A T T I M O R

E 3

COUNSEL

Sara J . O’Connell (arg

ued), Coving ton & B urling

, L L P, San Dieg o, California, for Petitioner-Appellant.

J ames W ill iam B ilderback, I I (arg ued), Trial Attorney ; Xiomara Costello, Deputy Attorney G e n e r al; Kamala D

. Harris, A ttorney G e n eral; Dane R. G illette, Chief Assistant Attorney G eneral; L ance E

. W inters, Senior Assistant Attorney G eneral; and K enneth C. B y rne, Supervis i n g D e p uty Attorney General, Off

i ce of the A ttorney General o f California, L os Ang eles, California, for RespondentAppellee.

OP INION

B ENAVI DES, Circuit J udg e:

A California state prisoner petitions this court for writ o f habeas c orpus pursuant to the Anti-terrorism and Effective Death Penalty Act ( “AEDPA”), 2 8 U.S

. C. § 2254 (2012). Currently serving a forty -y ear “ three s t rikes” sentence for first-deg ree burg la r y , C alifornia Penal Code § 459, the petitioner arg ues that she was deprived of effective assistance when her attorney f

ailed to present evidence of mental illness at sentencing

. B ecause the state’s adjudication of this claim

was not an unreasonable application o f c l e a rly e stablished f e d e r a l law, 28 U.S.C. § 2254 ( d), we A F F I RM the distri ct court’s denial of the petition.D A I R E V

. L A T T I M O R

E 4

I.

Sophia Daire is a 4 8

- y e a r-old woman w ho has, by all accounts, led a rather difficult life. Her p ersonal history is an unfortunate tapestry o f poverty , addiction, mental illness, a nd incarceration. I n terwove n a mong these dark elements is a disturbing pattern of v iolence, with D aire having s u f fered repeated phy sica l an d sex ual a buse at the h a

nds of friends, family members, and unknown assailants.

On September 8, 2006, D aire w as charg ed with firstdeg ree burg lary in v iolation of § 459 of the California Penal Code. A neig hborhood resident had reported v ar i o u s possessions missing from his home, including cash, perfume, clothing

, and costume jewelry

. D aire was s e e n wearing the resident’s missing NF L jersey a f ew minute s later, but the

more valuable stolen items were not i n h e r possession a nd

were n ever recovered. Upon her arrest, Daire denied h aving committed any crime, and insisted that she f o und the jersey and some of the o ther stolen p roperty in a nearby g arbag e bin. She conceded, however, that she has a rather long history o f similar residential burg laries.

W h en Daire’s first trial resulted in a hung j u r y , she was retried and convicted. At sentencing

, Daire admitted to three prior burg lary convic t i o n s for the purposes of California’s “three strikes” reci d i v ism sentence enhancements, id

. § 667(a)(1). D a i r e also filed a motion asking the court to disreg ard two of these strikes, as permitted by Romero 1 a nd § 1385 o f the Ca l i f

o rnia Penal Code. Althoug h defense counsel was aware of Daire’ s b i polar disorder, neither the

1 Peo ple v. S u p erio r Co u rt (

Ro mero )

, 91 7 P.2 d 6 2 8, 1 3 Cal. 4 th 4 9 7
, 5 3 Cal. Rp tr. 2 d 7 8 9 (Cal. 1 9 9 6).D A I R E V

. L A T T I M O R

E 5

motion nor the subseq u e nt oral arg ument included any information about Dai r e ’ s mental health. Ruling from the bench, the court denied the motion, finding a hig h r isk o f continued recidivism and concluding t h a t D aire represents the kind of “case[ ] that [ the] Three Strikes [ Rule] is for.” T he judg e then s entenced Daire to forty y ears, the minimum permissible sentence in lig h t of her r ecord. A suc c e s sful motion could h ave r esulted in a sentence of fewer t h an ten
y ears. See Cal. Penal Code § 461.

After unsuccessfully raising various challeng es on direct appeal, 2 Daire filed a h a b e a s petition in state court. Daire
arg ued, inter alia

, that counsel had b e en con s t i t u tionally ineffective by conducting insufficient research into Daire’s medical history and by failing to use Daire’s b ipolar disorder

as a mitig ating factor at sentencing

. I n particula r , Daire asserted that additional research would have revealed that her

c o n dition “can be manag ed with proper medication a nd treatment, probably quite e a sily .” Under the s t a n dard established in Strickland v. W ashington

, 4 66 U.S. 6 6 8 (1984), representation is only constitutionally inadequate if counsel’s

co n d u c t is unreasonable and results in prejudice to the defendant.

The California Superior Court declined to issue the writ, rejecting Da i r e ’ s a rg ument f or two reasons. F irst, it f ound counsel’s performance objectively reasonable in that counsel had “properly represented D aire throug hout [ the] mat t e r ,” a nd had presented the sentencing judg e with my riad m i t i ga ting factors at sente n c i n g

. See In re Sophia Daire
, No. V A

2 Peo ple v. D a ire
, No

. B 20 1 97 6
, 2 0 0 8 W L 4 9 2 6 9 5 6 (Cal. Ct. A p p

. No v

. 1 9
, 2 0 08 ), review d en ied

, N o

. S 1 6 9 2 5 3 (Cal. J an

. 2 8
, 2 0 0 9), a nd cert. d en ied , 5 5 7 U.S. 9 0 5 (2 0 09 ).D A I R E V

. L A T T I M O R

E 6

096706, 3–4 (Super. Ct. L .A. Cnty

. J u ly 1 5, 2 010) [ hereinafter “ State Decision”]

. I n addition, the court concluded that the sentence was ultimately unaffected by the omission of any evidence reg arding D aire’s mental h ealth, a s tha t e vidence would not have overcome “her unrelenting record of r ecidivism.” Id

. at 4–5. T he decision was affirmed without comment by the intermediate c ourt of appeals and b y the California Supreme Court. 3

F inding no relief f

rom the state bench, Daire turned to the federal courts, renewing he r ineffective assistance arg ument in a p etition submitted to the Central District of California. Under the AEDPA, fede r al courts may afford habeas relief from state custody only where a state court’s adjudication o f the same habeas cla im w as “contrary to, or

. . . an unreasonable application of, clearly established F ederal law.” 28 U.S.C. § 2254(d)(1). A mag istrat e judg e found the AEDPA standard satisfied with respect to the f i r s t p rong o f the Strickland test. See Daire v. Lattimore
, No. CV 10-3743- DMG(AJ W ), 2011 W L 7663701 (C.D. Cal. Nov. 10, 2011). Specifically

, the judg e found the st a t e court’s a naly sis o f counsel’s conduct “conclusory and unreaso n a ble,” and that trial counsel “fail[ ed] to p resent the most persuasive evidence
to support the Romero motion.” Id

. at *7 (footnote omitted). Nevertheless, the mag istrate judg e recommended deny ing the petition after finding that the state court’s adjudication of the prejudice prong was “ neither contrary to, nor an unreasonable application of, t h e S t rickland standard.” Id

. at *8. A s a

3 T h e Su perio r Co u rt also f

o u n d th e claim p ro ced u rally b arred

. T h at arg u m en t h as n o t b een raised h ere; h o w ev er, it ap p ears th e p ro ced u ral bar

w as o v erru l ed w

h en th e Calif

o rn ia Su prem e Co u

rt reach ed th e m e r its of Daire’ s petitio n

. S e e T

rig u ero s v. Ad

ams , 6 58 F.3 d 9 8 3
, 9 91 (9 th Cir. 2 0 1 1 ).D A I R E V

. L A T T I M O R

E 7

consequence, the mag istrate judg e concluded, D aire w as “ not entitled to relief on the basis of this claim.” Id.

After reviewing the mag istrate judg e’s r eport, the district
court accepted its recom m e n dation only in part. See 2012 W L 1197645 (C.D. Cal. April 9, 2012). Althoug h the district
court a g reed that the state court had unreasonably adjudicated effective assist a n c e , the d istrict court disag reed with the
mag istrate judg e’s conclusions reg arding prejudice. Id

. at *1. Specifically , the district court f ound that the state courts had “failed t o e v en consider whether the presentation of mental health evidence could have made a difference to the sentencing court.” Id . at *2. The district court ex plained:

I mportant to t

he prejudice assessment, a nd
not even mentioned in the Superior Court’s d e nial of habeas relief, is the fact that whe n declaring a mist r i a l after the first trial ended with a deadlock e d j u ry , the trial court stated, “[ t] he court could a ttempt to undercut the People’s offer, certainly on R omero , a n d I think there’s a strong basis f or that.” This

s t a t ement sug g ests that the trial court, whic h had just heard the e videnc e p resented during the first tria l

, was inclined to find a b asis for
g ranting a Romero motion. T h e Romero motion ultimately presented to the trial court, however, failed to include any evidence
reg arding pe t itioner’s severe mental illness, the e ffect of that men t a l c ondition on her culpability

, and t h e medical opinion that her illness was treatable.D A I R E V

. L A T T I M O R

E 8

This Court finds t h at the mental illness evidence omitted b y counsel in the Romero motion

. . . potentially ex plains her drug use and recidivism, and would have provided the ‘strong basis’ for the Romero motion that the trial court initially

anticipated.

Id

. at *1–*2 (emphasis in o r i gi n a l). The district court, howev er, ultimately denied the petition, reluctantly concluding that binding Circuit precedent preclu d es relief from any injustice a

rising out of ineffective assistance during noncapital sentencing

. Id

. at *2 (citing Davi s v. Grigas
, 4 43 F .3d 1155 (9th Cir. 2006), and Cooper-Smith v. Palmateer

, 397 F .3d 1 236 ( 9th Cir. 2005)). The district court then g ranted a certificate of appealability

, encourag ing Daire to seek relief from this Court.

II.

W e beg in by clarify

ing t he scope of our review. The district court certified the question of wh e t her Strickland ’s applicability “to the sentencing procedure in a noncapital case

was clearly established federal law” f or the purpos es o f Daire’s claim. Id. (referring to the standard stated in 28 U.S.C. § 2254(d)(1)). U n d e r AEDPA, our r eview is limit e d t o “ t he denial of a constitutional rig ht.” 28 U .S.C. § 2253( c ) ( 2 ). A certificate of appealability must therefore “indicate which specific issue” implicates that r ig ht. Id

. § (c)(3). T h e c e r t ificate g r anted here stops short of that standard, essentially c ertify ing a question o f pu r e l e g al theory

. However, because we a gr e e with the district court that Daire’s petition warrants further review, we construe the certificate as referring to the underly ing con s titutional issue

r a i sed by petitioner, viz
., whether Daire was deprive d o fD A I R E V

. L A T T I M O R

E 9

effective assista n c e w h en c ounsel failed to p resent a mental health d efense at sentencing

. That i s sue subsumes the

narrower question certified by the district court. T o whatever

ex tent the d istrict court did not intend to g rant a certificate on the constitutional issue, we ex ercise our own authority to do

so. Id

. § (c)(1); see also Jones v. Ryan
, 6 91 F .3d 1 093, 1095 (9th Cir. 2012) (ex panding district court’s certifi ca t e o f appealability

), cert. denied

, — U.S.

— , 13 3 S

. C t

. 2831 (2013).

III.

The district court denied Daire’s petition after concluding that Strickland ’s applicability to noncapital sentencing is not clearly established, and thus that federal courts can afford no relief from a state court’s flawed application of Strickland in that contex t. B ut, as ex plained later, w hether or not S trickland i s applicable to noncapital sentences is not determinative of the resolution of this appeal.

F ederal r eview of habeas petitions from state prisoners is
g overned by the AEDPA, 28 U.S.C. § 2254. T he AEDPA allows federal courts to issue a writ o nly where the p etitioner

can show that the state c ourt’s a djudication of the petitioner’s habeas arg ument “resulted in a d e c ision that was contrary to,

or involved a n u nreasonable application of, clearly established F ederal law, as determined b y the Supreme Court of the United States,” or “was b a s e d o n an unreasonable determination of the facts in lig ht of the ev i d en c e presented in the State court p roceeding .” Id

. § 2 254(d). Althoug h the California Supreme Court denied the pet i t i on without

ex p l a n a tion, its decision is nevertheless subject to § 2254 review. See Cullen v

. Pi n holster

, 131 S. Ct. 1388, 1402 (“Section 2254(d) applies even w h e re there has been aD A I R E V

. L A T T I M O R

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summary d enial.” ( ci t i ng Harrington v. Richter

, — U.S. —, 131 S. Ct. 770, 786 (2011))).

I n 1984, the Supreme Court established the standar d b y which defense counsel’s p erformance is g enerally measured. See generally Strickland

, 466 U.S. 668. Strickland involved

a challeng e to counsel’s handling of the sentencing p hase o f

a capital murder case. Id

. at 675. The petitioner, having been sentenced to death after confessing to three heinous murders,
arg ued that counsel should have ex plored several mitig ation options and should have presented evidence of mental illness
at sentencing

. Id

. at 672, 675–76. The habeas petition was adjudicated by the F lorida state co u r t s , by the U.S. District Court for the Southern D i s t r ict of F lorida, by the F ifth Circuit, and by the e n b a n c Eleventh Circuit after that court sp l it from the F ifth Circuit. Id

. at 677–80. E a ch of these
courts employ e d a slig htly different approach to d etermining the effectiveness of counsel’s performance. Id

. at 6 83–84. I n order to ensure a uniform constitution a l ex pectation, the Court ex plained that “[ i ] n a ny case presenting an ineffec tiveness claim, the performance inquiry must be whether counsel’s assistance was reasonable considering all the circumstances.” Id

. a t 6 8 8

. W ith reg ard to the r equired showing of prejudice, the proper standard requires the defendant to “show that there is a reasonable probability that, but f or counsel’s u nprofessional e rrors, 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 d ecision s w e re p art of a strateg y to “rel y a s fully a s p ossible on respondent’s acceptance o f responsibilit y f or his crimes.” Id

. at 699. B ecause trial counsel is afforded “ wide latitude” in making these “tactical decis i ons,” counsel’s performance was therefore a d e q u a t e

. I

d

. at 689, 6 99. And as for the omittedD A I R E V

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evidence, the Court concluded that the new material “would barely have altered the profile p r e s ented to the sentencing judg e.” Id

. at 700. As a consequence, the petitioner was not entitled to relief. Id . at 701.

Any uncertainty reg arding Strickland ’s role in the present

case r e sults from the lang u ag e o f Strickland itself. B y its o wn terms, the standard w as orig inally limited to counsel’s performance during the trial i t s e lf and a t capital sentencing

. The Supreme Court ex p ressly reserved the issue of effective assistance at noncapital sentencing :

The benchmark for judg ing any claim o f ineffectiveness mus t be whether counsel’s conduct so undermined the p roper functioning of the adversarial process that the trial cannot b e relied on as having produced a just result

. The same principle applies to a capital sentencing p roceed ing such as that provided by F lorida law. W

e need not c o nsider the role of counsel in an ordinary sentencing, which
may invo l ve informal proceedings and standardless discretion in the sentencer , a n d hence may require a different approach to the d e f i n i t i o n o f c o n s t i t u t i o n al l y e f f e c t i v e assistance. A capital sentencing proceeding like the one involved in this case, however, is sufficiently like a trial in its adversarial format and in the ex istence of standards for decision that counsel ’s r ole in the proceeding is comparable to counsel’s role at trial . . . .

Id

. at 686–87 (emphasis added) (citation omitted). G iven this caveat, th e parties stipulate that the assistance standard atD A I R E V

. L A T T I M O R

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noncapital sentencing could not have been clearly e stablished by Strickland

.

As the district court observed, we have twice p rev i ously held that there is no clearly established law, as required under AEDPA for a federal court to provide habeas relief to a state prisoner, that the Strickland standard applies to sentencing in noncapital cases. S

ee Davis v. Grigas , 443 F .3d 1155, 1158 (9th Cir. 2 006), and Cooper-Smith v. P almateer

, 397 F .3d 1236, 1244 (9th Cir. 2005) ( “ Since S trickland

, the Supreme Court h as not decided what standard should apply to ineffective a ssistance of counsel claims in th e noncapital sentencing contex t. Consequently

, there is no clearly established law in this contex t.”). That is a p r o p o s i tion not free from debate, as indicated by the concurring opini o n b y J udg e Graber in Davis
, where she qu e s t i oned whether Cooper-Smith was correct on that point. See Davis
, 443 F .3d

a t 1 1 5 9 (Graber, J
., c oncurring ); see also Davis v. Belleque

, 465 F

. App’x 728, 729 (9th Cir. 2012) (per curiam) (Paez

, J
., concurring ) (ag reeing with J udg e Graber’s co n c urrence in Davis ). Daire also arg ues that later Supreme Court decisions have made c lear that the Strickland stand a r d a pplies more g enerally

, c iting

, for ex ample, Glover v. United St a tes , 531 U .S. 198
, 2 0 1 –02 (2001); Premo v. Moore
, 131 S. Ct. 733, 737–38, 741–42 (2011); Harrington
, 131 S. Ct. 770, 786 (2011); a nd Lafler v. Cooper
, 132 S. Ct. 1 3 76, 1385–86 (2012).

W e see some m e rit to Daire’s arg ument. I t is clear that the S trickland standard, thoug h o rig inally limite d by the Strickland opinion itself to capital sentencing

, see Strickland

, 466 U.S. at 686, now applies in contex ts bey ond that.D A I R E V

. L A T T I M O R

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As a th r e e

-

j u dg e panel of this circuit, however, w e a re bound by prior panel opinions and can only reex amine them when “the reasoning or theory of our prior circuit a uthority is clearly irreconcilable w ith the reasoning o r theor y o f intervening hig her autho rity .” Miller v. Gammie
, 335 F .3d 889, 893 ( 9th Cir. 2003) (en banc). “This is a hig h standard.” Lair v. Bullock

, 697 F .3d 1200, 1207 (9th Cir. 2012) (internal quotation marks omitted). W ere we writing o n a clean slate,

we mig ht conclude that it was clearly established t h at the Strickland

standard applies, but the slate is not clean.

I n other circumstances, this panel would likely encourag e the court to revisit this issue en banc. W e do not need to do

so here, however, b e c a u se we conclude that Daire cannot prevail for another reason.

IV.

Even assuming

, arguendo

, that Strickland ’s applicability is clearly established, D aire cannot p revail un d e r the r eview standard imposed by the A EDPA. T he AEDPA stops just “short of imposing a complete bar on federal court relitig ation of claims already rejected in state proceeding s.” 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). “I t preserve s authority to issue the writ in cases where there is no possibility fairminded jurists could disag r ee that the state court’s decision conflicts with this Court’s
p r e c edents. I t g oes n o farther.” Harrington
, 131 S. Ct. at 786. Therefore, “ [ a] s a condition for obtaining habeas corpus from a federal court, a state p risoner must show that the state court’s ruling on the claim b eing presented in federal court

was so lacking in j u s t i f

i cation that there was an error

. . . bey ond any possibility for fairm i n ded disag reement.” Id

. atD A I R E V

. L A T T I M O R

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786–87. The district court concluded that Daire h ad met this

onerous s t a n d ard. W e review that c onclusion de n ovo

. Hedlund v. Ryan , 750 F .3d 793, 798 (9th Cir. 2014).

A.

B e fore turning to the state court’s adjudication of Daire’s claim, s o m e a d ditional contex t may be helpful. Daire contends that s h e was d eprived o f effective assistance when counsel o mitted her mental il l ness from the Romero motion and subsequent h earing

. Prior to trial, counsel had arrang ed for a psy chiatric eval u ation by Dr. Mark E. J affe, M.D. Dr. J affe reported preliminary d iag noses of bipolar disorder, antisocial personality disorder, and substance a ddiction. He further noted that Daire had received treatment intermittently

over the y ears, but “took her medications inconsistently

. ” Daire had been in a treatment facility as recent l y a s a few weeks earlier, but moved out after a dispute with another patient. I

d

. This was n ot the first time Daire h ad discontinued treatment—the p hy sician re p o rted that “[ s] he has been in several treatment prog ra m s b ut had difficulties and left.” Dr. J affe ultimately concluded that Daire was “ too unstable to live in the c ommunity ,” and recommended comprehensive in-patient treatment. Counsel d id not provide Dr. J affe with a

ny of Daire’s medical records, and apparently did not ask for an opinion on Daire’s risk of recidivism.

Three y ears later, post-conviction counsel provided some of Daire’s medical records to the same phy sician. Dr. J a ffe

was asked to clarify his orig inal statements and to estimate the risk of recidivism in lig ht of Daire’s records. He replied that Daire’s bipolar disorder was readily treatable, but thatD A I R E V

. L A T T I M O R

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Ms. Daire require[ s] confinement in a locked environment for between one to t w o y ears before being released on parole.

. . . [ B ] y ‘too unstable to l ive in the community ,’ I meant that her antisocial impulses w ere too severe in combination with her ment a l illness a nd substance a

bus e , and that she w as likely to commit a dditional criminal acts in order to obtain money to buy drug s, un l e s s s he had a period of confinement of between one to two
y ears

. . . [ in which] specific treatment recommendations that I would outlin e were followed.

He further reported that Da i r e had n ever received proper medical treatment for h er b ipolar disorder and that her substance addiction p robably could not be overcome without such treatment. The r emainder of D r. J affe’s post-conviction letter was larg e ly

redundant of his earlier report.

I n addition to having D r. J affe review Daire’s recor d s , habeas counsel a sked Daire to draft a statement recounting h e r traumatic history and the contex t of her most r e c e n t offense. D aire indica ted that she h ad been evicted from her home and raped in the 48 hours before the burg lary

. She also complained that trial counsel had not interviewed any of her friends o r f

amily members reg arding her character. This evidence was submitted to the Superior Court wi t h Daire’s state habeas petition.

B.

The state court’s a djudication of Daire’s claim was not an

u n r easonable a

pplication of the S

trickland standard. Un d e rD A I R E V

. L A T T I M O R

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t h e AEDPA, review of counsel’s performance is “doub l y d eferential,” r equiring b oth a “hig hly deferential look at counsel’s performance,” and additional deference to the state court’s conclusions reg arding that performance. Pinholster

, 131 S. Ct. at 1403 (internal quotation marks and cita tions omitted); see also Har r i n g t o n , 131 S. Ct. a t 784 (requiring deference to state court unless there is “no reasonable basis” for its d ecision). W ith respect to Daire’ s i n e ffective assistance arg u ment, the state court found “no evidence that Daire’s tr i a l c ounsel’s performance fell below an objective standard of reasonableness.” State Decision 3. This was not an unreasonable application of federal law.

Under Cal i f

o rnia law, an attorney submitting a Romero motion should inves t i gate a defendant’s “backg round, character, and prospects,” and then relay these finding s to the
court. People v. Thimmes

, 138 Cal. App. 4th 1207, 1213, 41 Cal. Rptr. 3d 925, 929 (Ct. App. 2006). T he state courts rejected D aire’s arg ument a fter noting that counsel had done just that, ex plaining that she submitted a d etailed Romero brief which included “a my riad of individualiz ed considerations.” State D ecision 5 ( quoting disposition o f direct appeal, 2008 W L 4926956 at * 7). I ndeed, between the written motion and the h ear i n g, counsel referred to Daire’s poverty , her advanced a g e, the relatively in c o nsequential
nature of her crimina l r e c ord, her e ncounters with violence and abuse, and the f

act that she w as reportedly r aped the day before the burg lary

. And althoug h counsel never mentioned Daire’s mental illness itse l f

, s he r eferred to Daire’s seiz ures and substance ad d i c t i o n, and emphasiz ed Daire’s need for intensive treatment. Given the litany o f mitiga ting f actors presented at sentencing

, it was reasonable for the state court to conclude that counsel had satisfied her constitut ional oblig ation to D aire. See Gonzalez v. Knowles

, 515 F .3d 1006,D A I R E V

. L A T T I M O R

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1015 (9 t h C ir. 2008) (finding

, upon de novo review, the omission of psy chiatric evidence a nd family testimony reasonable where c ounsel presented “a number of mitig ating factors” to judg e).

Daire arg ues that her counsel’s assistance was inadequate insofar as counsel failed to conduc t a more thoroug h investig a t ion into Daire’s p ersonal history

. Even “less than complete” res ea r ch is sufficient under Strickland

, however,

so long a s “reasonable profes s i onal judg ments support the limitations on investig atio n

. ” Strickland

, 466 U.S. at 691. The o n l y arg ument made here is that counsel failed to f ully investig ate Daire’s medical history

. Yet trial counsel

a r rang ed for Dr. J affe’s psy chiatric evaluation of Daire i n November of 2006. B ased on the re sulting report, counsel

wa s fully justified in choosing not to pursue any additional information on the subject. A fair reading of t h e d o c t or’s letter is at least as damag ing to Dai re’s case as it is mitig ating

. F or ex ample, Dr. J affe indicated that Daire has a violent personality disorder, that she is unpredictable, a nd that she has a history of abandoning psy chiatric treatment. The d octor ex plicitly stated that Daire is “too unstable to live in the community .” I t seems likely that a reasonable attorney would have recog niz ed how co u nterproductive additional research mig ht be, and mig ht have made a strateg ic decision
not to delve any further into Daire’s psy chiatric issues. See Rompilla v. Beard

, 545 U.S. 374, 3 83 (2005) (“[ R] easonably dilig ent counsel may draw a line when they have g ood reason t o t h ink further investig ation would be a waste.”). According ly

, Daire has not established t h a t the state court’s determination was unreasonable.

Counsel’s decision not to refer to D aire’s b ipo lar diag nosis was equally reasonable. B ecause there wasD A I R E V

. L A T T I M O R

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apparently not an evidentiary hearing on this issue, we cannot be certain as to the r eason f o r the omission of a mental health defense. Nevertheless, we must presume that “the challeng ed action mig ht b e considered sound trial strateg y .” Strickland

, 466 U

. S

. at 689 (internal quotation marks and citation omitted). A fter all, Daire’s at t o rney arrang ed for the
psy c h i atric evaluation and report. According ly

, it seems counsel would have submitted the evidence that she h erself procured if she thoug ht it would help the case. Review of the written Romero motion sug g est s that counsel instead hoped
to persuade the judg e b y portray ing Daire as a misg uided but larg e ly harmless individual:

The court cannot ig nore that while Ms. Daire has continued in h er criminal conduct she has been mostly motivated b y her poverty , hom e l e s sness, and drug u se. She has chosen homes where larg e ly the r esi d ents have not been present.

. . . O nly once has h er nonviolent conduct turned potentially violent.

Similarly

, at the Romero hearing counsel described Daire a s “circumspect” in her b urg lary

, and n o ted that she has only taken “thing s of minimal and nominal value” a nd only when the “residences [ ] were not occupied.” Review of the trial record conf

i r m s that counsel chose to emphasiz e other mitig ating factors, and apparently made a deliberate decision
not to place Daire’s health at issue. Over the cour s e of the
two trials, n either counsel nor Daire made any mention of her mental illness. I n fact, when prosecutors seeming ly a l l u d ed
to Daire’s p sy chiatric issues, defense counsel p r omptlyD A I R E V

. L A T T I M O R

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objected. 4 So the r ecord—far from sug g esting that the

a b s e nce o f medical evidence at sentencing was an o versigh t

or omission—sug g ests that the omission was p a r t o f a comprehensive effort to p ortray Daire as nothing w orse than

a petty thief. As a consequence of the elected defen se,

c o u n sel could not refer to Daire’s mental health without undermining her p r imary arg ument that Daire was larg ely harmless

. W hen evaluating a petitioner’s alleg ations
reg arding an evidentiary omission, we must consider “all the relevant e vidence” that wo u l d have b een revealed upon

su b m ission—“not just the mitig ation evidence.” W ong v

. Belmontes

, 558 U.S

. 15, 2 0 (2009) (per curiam) (emphasis omitted). Under California law, a defendant c a n n ot submit

ex c e rpts of a phy sician’s letter w ithout discl o s i n g the entire
tex t to opposing counsel. Cal. Ev i d

. C o d e § 356. And if Daire had revealed any “sig nificant part” of a privileg ed medical record, she would have lost h er privilege a s to the remainder. Id

. § 912(a). So counsel co u ld not—as the district court implied—simply isolate t h e most sy mpathetic aspects of Daire’s health to submit at trial and sentencing

.

F or ex ample, if counsel h ad used ex cerpts of Dr. J affe’s letter to arg ue that medical treatment would lower the risk o f recidivism, prosecutors almost certai n ly would have countered with Daire’s h istory of abandoning treatment prog r ams. Even worse, D r. J affe reported that Daire showed anti-social tendencies and note d that her bipolar disorder results in manic f

its of viole n c e

. D uring the psy chiatric

4 Daire m en tio n ed t h a t o n t h e d ay o f t

h e o f f en se sh e h ad b een “ u

p f or tw o d ay s .” Id

. Wh en th e p ro secu t io n ask ed ho w sh e h ad m an ag ed to

“ s tay [] aw ak e f

o r tw o d ay s,” d ef

en se im m ed iately o b

j ected

. Id

. C o u n sel
p resu m ab ly an ticip ated th at Daire’ s an sw er w o u ld ref er to h er co cain e ad d ictio n o r h er m an ic ep iso d es, o r b o th

.D A I R E V

. L A T T I M O R

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evaluation, Daire admitted several prior violent outbursts that included stabbing a friend with a butcher knife and assaulting

a homel e s s m a n just “for fun.” She also apparently tried to burn her f

amily ’s house down. This is hardly the beha v ior

one would ex pect from a h ar m l e ss and “circumspect” individual. Yet if counsel had put Daire’s mental h e a l t h at issue, this ig nominious resumé would have become fair g ame for the prosecution’s use at trial and at sentencing

.

W e d o not mean to belittle Daire’s medical condition o r sug g est that her history is a ny thing other than unfortunate. I t

seem s l i k e ly that any violent disposition or mental illness Daire has is related to the shocking a buse Daire suffered as a child and y oung adult. As Dr. J a ffe himself stated, “[ l] ike
many women who a

re a ddicted to drug s a

nd serve prison ti m e , t h e defendant has an ex tensive history of trauma.” So it is possible that—as the d istrict court concluded—counsel would have been better off adopting an a l t e rnate strateg y

. Perhaps instead of try ing to characteriz e Daire as harmless and non-violent, counsel should h ave co n c eded the violent
psy chiatric disorders and then arg ued t h a t those disorders could be o v ercome w ith prope r i n tervention. The law, however, does not permit us to second

- gu e s s the trial attorney ’s strateg y

. I nstead, “every effort [ must] be made to eliminate the distorting effect of hindsig ht.” Strickland

, 466 U.S. a t 689. W e must therefore resist the temptation “to conclude that a particular act or o mission was unreasonable” simply because it “proved unsuccessful” at trial. Id.

F or that reason, w e cannot assume, as the district court did, that the mental he a lth records provided “the most persuasive evidence to support the Romero motion.” Daire
, 2011 W L 7663701, at *7. Our precedent is clear that where

a d efendant’s psy c hiatric hi s t o ry is both mitig a ting a ndD A I R E V

. L A T T I M O R

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incriminating

, tr i a l counsel is b e st positioned to determine how to incorporate a diag n o sis into the d efense. 5 And as we have ex plained, informed counsel “need not present a defense just because it [ is] viable.” Mickey

, 606 F .3d. at 1238. Here, althoug h w e c annot be certa i n as to why the psy chiatric evidence was omitted, the record as a whole sug g e sts that Daire’s attorney devised an informed defense and a reasonable mitig ating strateg y , and that is all the Constitution requires.

C.

The state court f

ound an absence of prejudice in deny ing Daire’s clai m. “An error by counsel, even if professionally unreasonable, does not warrant setting aside the judg ment o f

a c r iminal proceeding if th e error had no effect on the judg ment.” Strickland

, 466 U.S. at 691. I t is therefore not sufficient for Daire to simply a rg ue that the omitted evidence mig ht h ave made her Romero motion stron ge r

. I n order to p revail b efore the state habeas court, Daire n eeded to demonstrate a “reasonable p robability ” that submission o f additional medical evidence would h ave resul t e d i n a successful motion a

nd a concomitantly reduced sentence. Id.
at 694. I n other words, th e a l l eg ed failure must have been

5 S ee W on g , 5 5 8 U.S. a t 1 8 ( reco g n izin g co u n sel’ s rig h t “ to p ro ceed

cau tio u sly

, stru ctu rin g h i s m itig atio n arg u m en ts an d w itn es s es to lim i t [th e] p o ssib ility ” th at op p o sin g co u n sel w ill g ain access to d am ag i ng

ev id en ce); Mickey v. A y e r s , 6 0 6 F.3 d 12 2 3
, 1 2 3 8

– 3 9 (9 th Cir. 20 1 0) (h o ld i n g th at o m ittin g a m en tal h ealth d ef en se w a s reaso n ab le w

h ere p sy ch iatric reco rd s co n trad icted o th er elem en ts o f d ef en se an d w o u ld h av e

“ op en ed th e d o o r” to i n crim in atin g issu es); H en d ricks v. C

a ld ero n , 7 0 F.3 d 1 0 32
, 1 0 3 7 (9 t h Cir. 1 9 95 ) (f

in d in g reaso n ab le a co u n sel’ s d ecisio n to f

o rg o m e n t a l h ealth d ef

en se w h ere it w as n o t p articu larly
p ersu asiv e an d w ou l d h av e rev ealed crim in al h isto ry ).D A I R E V

. L A T T I M O R

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eg reg ious e noug h to “undermine confidence” in the outcome of the proceeding

. Id. Althoug h some jurists mig ht find this standard satisfied, the state court’s contra r y conclusion was not unreasonable.

Daire was sentenced in accordance with California’s socalled “three strikes” r

ule, which “consists o f two n e a r ly identical statut o r y schemes desig n ed to increase the prison
terms of repeat felons.” R ios v. Garcia
, 390 F .3d 1082, 1084 (9th Cir. 2004) (quoting Romero
, 917 P.2d at 630, 13 Cal. 4th
at 5 04, 53 Cal. Rptr. 2d at 7 9 1 ) (punctuation revised). The
stat u t e s have minor differences, but both provide that when

a defendant is convicted of a felony

, and the state proves that the defendant has c o mmitted certain prior felonies, the defendant is subject to g reatly enhanced sentencing requirements. Id. at 1085; se e a l s o Cal. Penal Code §§ 667(c), 1170.12(a). There is, however, an ex ception to the rule. I f a defendant so moves, a judg e may disreg ard a prior felony under “ex traordinary ” circumstances. Pe o

ple v

. Carmony
, 92 P.3d 369, 376, 33 Cal. 4th 367
, 378, 14 Cal. Rptr. 3d 880, 889 (Cal. 2 004). B efore doing so, the judg e must determine that the defendant lies “ outside the spirit” o f the scheme such that he “should be treated as thoug h he had
not previously been c onvicted of one or more” of the strikes. Id. (quoting People v

. W

i l l iams
, 9 4 8 P.2d 429, 437, 17 Cal. 4th 148, 1 61, 69 Cal. Rptr. 2d 9 17, 948 (Cal. 1 9 9 8 ) )

. T o prevail on one of these “ Romero ” motions, a defendant must

overcome the “strong p r esumption that any sentence that conforms to these sentencing norms is both rational a nd proper.” Id. A s a conseque n ce , denial of a Romero motion is g enerally the ex p ectation, not the e x ception

. H er e , as a fourth-strike defendant, D aire needed the judg e to d isreg ard
two of her three p rior felonies to even be elig ible for a lesserD A I R E V

. L A T T I M O R

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sentence. She therefore faced a cons iderable burden at the Romero hearing

.

After reviewing the omitted evidence, we find reasonable the state c ourt’s conclusion reg arding prejudice. D a ire’s medical history includes an ambig uous set of mitig ating a nd incriminating factors. The sentencing judg e rejected Daire’s
reques t for leniency a f

ter concluding that she is, e ssentially

, an unrepentant recidivist: “[ T] here is a substantial career of criminality in this defendant’s backg round

. . . . She has never been out for very long before she re-offends

. . . .” T h e court

on direct appeal apparently ag reed with this characteriz ation, finding no abuse of discretion a n d obliquely referring to Daire as h aving an “unrelenting record of recidivism.” Daire
, 2008 W L 4926956, at *7. I ndeed, i n a ddition to the three residential burg lary convictions, D ai r e’s record includes convictions or arrests for loitering

, tampering

, possession of controlled substance, possession of narc o t i cs, assault resulting in bodily injury

, vehicular thef t , and parole violations. Id. As the Superior Court te r s e ly observed, it seems Daire only

avoids trouble with the law w hen she is in prison. See State Decision 6.

Daire arg ues that she was pr e j u d i c ed in that the judg e received no information r e g arding t h e possibility that she coul d be r e habilitated with proper medical treatment for bipolar disorder. Reg rettably

, this arg ument is belied by the proffered evidence itself. Not only does her medical history
not undermine the risk o f recidivism, it only u nderscores the

ex tent to which rehabilitation is unlikely

. Althoug h Dr. J affe observed that Daire could perhaps be “easily ” reformed with in-patient treatment, th e re c o rd indicates a clear pattern o f abandoning treatment prog rams. F or ex ample, she lef t o n e prog r am because she did n ot like living in a f acility along sideD A I R E V

. L A T T I M O R

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men, and left another after an altercatio n with a fellow patient. I n fact, Dr

. J a ffe himself concluded that Daire needed to be in a “locked e nvironment” beca u se she was “likely to c ommit additional criminal acts.” He f u r ther cautioned that medical pr ofessionals could only effectively
treat Daire if she chose to remain “clean and sober.” Yet the doctor made no comment as to the ex tent of that commitment

on Daire’s part. Perhaps most d amag ing to Daire’s arg ument is the fact that she was apparently underg oing treatment a nd taking h e r medications at the time of the most recent offense. Consequently

, it was not un r e as o n a ble for the state court to conclude that “ [ e] ven if the trial c ourt w ould have h eard more arg ument concerning Daire’s drug use, psy cholog ical issues, and childhood, Da i r e ’s sentence would not have been any different.” 6

W e note, in addition, sig nificant d iscrepancies in the letters pr o v i d ed by the consulting phy sician. I n the orig inal interview, Daire told Dr. J affe 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 p r e s cription medication used to treat m a n i c e pisodes in bipolar patients. See Phy sicians’ Desk Reference 417–22 ( 6 1st ed

. 2 007). Daire indicated that she had orig inally been p rescribed that

m e d i cation while living at Tarz ana Treatment Center, a nd that it made her feel “mellow” and more stable. I n the 2010 letter r e q uested f

or h abeas p urposes, J affe c ontradicted his

6 State Decisio n 4

. It is n o t in sig n if ic an t th at th e m ag istrate j u d g e an d d istrict co u

rt j u d g e d i sag reed as to w h eth er th is o m iss io n resu lted in
p rej u d ice. A lth ou g h th e tw o j u dg es arriv ed at co n trary co n clu sio n s, th ey b o th pro v id ed caref

u lly reaso n ed an d leg ally d ef en s ib le arg u m en ts in

su p p o rt o f th eir resp ectiv e po sitio n s. Un d er su ch circu m stan ces , w e

w o u ld b e h ard

- p ress e d t o fin d th e state’ s d ecisio n u n reaso n ab l e. S ee Ha rrin g to n , 1 3 1 S. Ct. at 7 8 6

– 8 7

.D A I R E V

. L A T T I M O R

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orig inal letter, reporting no “indication that she was prescribed medications for B ipolar disorder w hile in the [ Tarz a na] prog ram.” This statement is puz z ling

, g iven Daire’s contrary testimony a n d c onsidering that the Tarz ana discharg e rec o r d—a copy of which was g iven to J affe— clearly lists a diag n o s i s o f “296.62 bipolar disorder,” a nd
states that Daire was “medicated a nd compliant while in the unit.” We need not resolve these factual discrepancies today

. Nevertheless, the inconsistencies render more r easonable the state’s conclusion reg arding prejudice. I n fact, the S trickland Court itself dealt with a simi l a r d iscrepancy

, ultimately finding “no reasonable probability that the omitted evidence would have chang ed the conclusion” at sentencing

, a nd noting that the inconsistencies “mig ht even have been harmful” to the defense. See Strickland

, 466 U.S. at 676–77, 699.

Daire nevertheless tries to d emonstrate prejudice b y characteriz ing this particular judg e as s y m pathetic to her

cause. She points to a comment in the mistrial transcript
reg arding the weakness of the prosecution’s c ase, specifically that “the c ourt could attempt to undercut the people’s offer, certainly on R omero , and I thi n k there’s a strong basis for that.” B u t this comme n t i m p l i es little o r nothing about the actual adjudication of the Romero motion, which was handled by a different judg e. 7 Moreover, the merits of the motion h ad
not y et been presented, so the mistrial judg e mig ht w ell have felt differently after r eviewing the submissions. D a ire also takes the sentencing judg e’s comments o u t of c ontex t b y describing the R o m e r o o utcome as a “close” call. That

7 J u d g e M i ch ael A

. Co w ell h an d led th e orig i n al trial, an d J u dg e Marg aret M i l l e r B ern al p resid ed o v er th e retrial an d su bseq u en t

sen ten cin g

.D A I R E V

. L A T T I M O R

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characteriz ation is b e lied by the record. T h e judg e mistakenly thoug ht the sentence would b e fairly “ close” ( i.e
., substantially the same) reg ardless of whether she g ranted the motion. Y et even after c o unsel emphasiz ed how leng thy a three-strikes sentence would be, the judg e nevertheless chose
to deny the motion and impose the forty -y ear sentence. Id. So there is little indication that awareness of Daire’s bipolar disorder mig ht have somehow t i p p ed the balance in Daire’s favor. I n deed, g iven that the judg e was unpersua d e d b y an eviction and reported rape within 48 hours of the offens e , it

seems unlikely that D aire’s dual-edg ed diag nosis—or
any thing e lse, for that matter—would have moved the court to leniency

.

F inally

, a recent Romero appeal supports the state court’s

co n clusion that the motion would have been denied irrespective of the proffered mi t i ga t ing evidence. See generally People v. Miller

, No. H037246, 2013 W L 6710724 ( C a l

. C t. App. 2013) (unpublished). The Miller court considered a direct appeal involving an in d i v idual quite similar to Daire. The defendant h a d c o mmitted three robberies to s u p p o r

t his substance addiction, which he described as h is “big g est chal l e n ge ” in life. Id

. at *1 & n.3. I n seeking Romero relief fr o m a three-strikes sentence, the d e f e n d ant p ointed out that he suffered from a n untreated mental illness and that none of h i s o ffenses had been very serious

. I

d

. at *1. He u rg ed leniency

, arg uing that he was “homeless, ” “ s everely depressed,” and in need of medical help. Id. I n opposing the m o t ion, prosecutors used those
very same factua l p re dicates to a rg ue that defendant was prone to recidivism and simply “unable to live a sober, stable,D A I R E V

. L A T T I M O R

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or productive lif

e.” I d. Ag reeing with the prosecution a nd deeming the defendant a threat to public welfare, the sentencing judg e denied the motion. Id

. at *2. The appellate
court affirmed, noting that R omero “does not compel a trial

c ourt to dismiss a p rior strike simply because factors ex i s t that may justify doing so,” and e mphasiz ing that “there

con t inues to be a strong presumption that sentences that conform to the sentencing n o r ms set forth under the Three St r i k e s l a w a

re both rational and proper.” Id

. a t *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 read i ly apparent. I n broad strokes, the only qualitative difference in their respective Romero arg u ments was that Miller’s motion incorporated a mental healt h defense. And y et Miller’s motion was denied in the same manner Daire’s was. W e do
not mean to overstate Miller ’s implications f o r the present dispute, as even a perfectly analog ous case could not possibly reveal how D aire’s Romero motion would have been resolved in lig ht of her unique psy chiatric h istory

. N e v e r t h e less, the Miller decision supports the state c o u r t ’s conclusion that submission of Daire’ s medical evidence would not have

c h a n ged the o utcome o f the Romero hearing

. According l y , we cannot say that there is no reasonable basis for that decision. Harrington , 131 S. Ct. at 784.

V.

F or the reasons stated, we conclude that the state court’s decision was reasonable with respect to both prong s o f Strickland

. The federal courts are theref o r e p recluded from af f ording the r equested relief, irrespective of whetherD A I R E V

. L A T T I M O R

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Strickland ’s applicability to noncapita l sentencing is clearly established. 28 U.S.C. § 2254(d)(1).

AF F IRMED.

The costs on appeal shall be tax ed ag ainst petitionerappellant.