FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SOPHIA DAIRE,

Petitioner-Appellant,

v.

MARY LATTIMORE, Warden

Respondent-Appellee.

No. 12-55667

D.C. No.

CV 10-3743-

DMG(AJW)

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 19, 2015

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

The panel affirmed the district court’s denial of a 28

U.S.C. § 2254 habeas corpus petition brought by California

state prisoner Sophia Daire, who is serving a 40-year “three

strikes” sentence for first-degree burglary.

Daire argued that she was deprived of effective assistance

because her attorney failed to present evidence of mental

illness in her Romero motion asking the sentencing court to

disregard two of her strikes. The panel held that even

assuming, arguendo, that the applicability of Strickland v.

Washington to noncapital sentencing is clearly established

such that federal courts can afford relief from a state court’s

flawed application of Strickland in that context, Daire cannot

prevail under the review standard imposed by AEDPA. 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 Daire’s medical

evidence would not have changed the outcome of her Romero

hearing – were not unreasonable applications of federal law.

** 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, Chief Assistant

Attorney General; Lance E. Winters, Senior Assistant

AttorneyGeneral; and Kenneth C. Byrne, SupervisingDeputy

Attorney General, Office of the Attorney General of

California, Los Angeles, California, for RespondentAppellee.

OPINION

BENAVIDES, Circuit Judge:

A California state prisoner petitions this court for writ of

habeas corpus pursuant to the Anti-terrorism and Effective

Death Penalty Act (“AEDPA”), 28 U.S.C. § 2254 (2012). 

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.
4 DAIRE V. LATTIMORE

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

repeated physical and sexual abuse at the hands of friends,

family members, and unknown assailants.

On September 8, 2006, Daire was charged with firstdegree 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 Romero1and

§ 1385 of the California Penal Code. Although defense

counsel was aware of Daire’s bipolar disorder, neither the

1 People v. Superior Court (Romero), 917 P.2d 628, 13 Cal. 4th 497,

53 Cal. Rptr. 2d 789 (Cal. 1996).
DAIRE V. LATTIMORE 5

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 thatDaire 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

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,2 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 “properlyrepresented Daire throughout [the]matter,” and

had presented the sentencing judge with myriad mitigating

factors at sentencing. See In re Sophia Daire, No. VA

2 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).
6 DAIRE V. LATTIMORE

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

without comment by the intermediate court of appeals and by

the California Supreme Court.3

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, clearlyestablished 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

3 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 7

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

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.
8 DAIRE V. LATTIMORE

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.

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)). 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
DAIRE V. LATTIMORE 9

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

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.

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 context. But, as explained later, whether or not Strickland

is applicable to noncapital sentences is not determinative of

the resolution of this appeal.

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
10 DAIRE V. LATTIMORE

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

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
DAIRE V. LATTIMORE 11

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.

Any uncertainty regarding Strickland’s role in the present

case results from the language of Strickland itself. By its own

terms, the standard was originally limited to counsel’s

performance during the trial itself and at capital sentencing. 

The Supreme Court expressly reserved the issue of effective

assistance at noncapital sentencing:

The benchmark for judging any claim of

ineffectiveness must be whether counsel’s

conduct so undermined the proper functioning

of the adversarial process that the trial cannot

be relied on as having produced a just result. 

The same principle applies to a capital

sentencing proceeding such as that provided

by Florida law. We need not consider the role

of counsel in an ordinary sentencing, which

may involve informal proceedings and

standardless discretion in the sentencer, and

hence may require a different approach to the

definition of constitutionally effective

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 existence of standards for decision

that counsel’s role in the proceeding is

comparable to counsel’s role at trial . . . .

Id. at 686–87 (emphasis added) (citation omitted). Given this

caveat, the parties stipulate that the assistance standard at
12 DAIRE V. LATTIMORE

noncapital sentencing could not have been clearly established

by Strickland.

As the district court observed, we have twice previously

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. See Davis v. Grigas, 443 F.3d 1155, 1158

(9th Cir. 2006), and Cooper-Smith v. Palmateer, 397 F.3d

1236, 1244 (9th Cir. 2005) (“Since Strickland, the Supreme

Court has not decided what standard should apply to

ineffective assistance of counsel claims in the noncapital

sentencing context. Consequently, there is no clearly

established law in this context.”). That is a proposition not

free from debate, as indicated by the concurring opinion by

Judge Graber in Davis, where she questioned whether

Cooper-Smith was correct on that point. See Davis, 443 F.3d

at 1159 (Graber, J., concurring); see also Davis v. Belleque,

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

concurring) (agreeing with Judge Graber’s concurrence in

Davis). Daire also argues that later Supreme Court decisions

have made clear that the Strickland standard applies more

generally, citing, for example, Glover v. United States,

531 U.S. 198, 201–02 (2001); Premo v. Moore, 131 S. Ct.

733, 737–38, 741–42 (2011); Harrington, 131 S. Ct. 770, 786

(2011); and Lafler v. Cooper, 132 S. Ct. 1376, 1385–86

(2012).

We see some merit to Daire’s argument. It is clear that

the Strickland standard, though originally limited by the

Strickland opinion itself to capital sentencing, see Strickland,

466 U.S. at 686, now applies in contexts beyond that.
DAIRE V. LATTIMORE 13

As a three-judge panel of this circuit, however, we are

bound by prior panel opinions and can only reexamine them

when “the reasoning or theory of our prior circuit authority is

clearly irreconcilable with the reasoning or theory of

intervening higher authority.” Miller v. Gammie, 335 F.3d

889, 893 (9th Cir. 2003) (en banc). “This is a high standard.”

Lair v. Bullock, 697 F.3d 1200, 1207 (9th Cir. 2012) (internal

quotation marks omitted). Were we writing on a clean slate,

we might conclude that it was clearly established that the

Strickland standard applies, but the slate is not clean.

In other circumstances, this panel would likely encourage

the court to revisit this issue en banc. We do not need to do

so here, however, because we conclude that Daire cannot

prevail for another reason.

IV.

Even assuming, arguendo, that Strickland’s applicability

is clearly established, 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
14 DAIRE V. LATTIMORE

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, antisocial 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

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
DAIRE V. LATTIMORE 15

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

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
16 DAIRE V. LATTIMORE

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

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,
DAIRE V. LATTIMORE 17

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

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
18 DAIRE V. LATTIMORE

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

homes where largely the residents have not

been present. . . . Only once has her nonviolent 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 anymention of her

mental illness. In fact, when prosecutors seemingly alluded

to Daire’s psychiatric issues, defense counsel promptly
DAIRE V. LATTIMORE 19

objected.4 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

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

4 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.
20 DAIRE V. LATTIMORE

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

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
DAIRE V. LATTIMORE 21

incriminating, trial counsel is best positioned to determine

how to incorporate a diagnosis into the defense.5 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.

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

5

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).
22 DAIRE V. LATTIMORE

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 socalled “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.

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
DAIRE V. LATTIMORE 23

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

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
24 DAIRE V. LATTIMORE

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.”6

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

6 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

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

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

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 Romeromotion, which was handled

by a different judge.7 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

7

Judge Michael A. Cowell handled the original trial, and Judge

Margaret Miller Bernal presided over the retrial and subsequent

sentencing.
26 DAIRE V. LATTIMORE

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

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,
DAIRE V. LATTIMORE 27

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 Romeromotion would have been resolved

in light of her unique psychiatric history. Nevertheless, the

Miller decision supports the state court’s conclusion that

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, irrespective of whether
28 DAIRE V. LATTIMORE

Strickland’s applicability to noncapital sentencing is clearly

established. 28 U.S.C. § 2254(d)(1).

AFFIRMED.

The costs on appeal shall be taxed against petitionerappellant.