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Name: Daire v. Lattimore
Case #: 12-55667
Court: US Court of Appeals
District 9 Cir
Opinion Date: 03/19/2015

State court did not unreasonably apply the Strickland standard when it concluded that defense counsel did not render ineffective assistance by failing to admit evidence of defendant’s bipolar disorder as a mitigating factor during sentencing. Daire was convicted of residential burglary (Pen. Code, § 459) and she admitted three prior strike offenses. At sentencing, defense counsel made a Romero motion but he failed to offer available evidence of Daire’s bipolar disorder as a mitigating factor. She was sentenced to 40-years-to-life under the Three Strikes law. After an unsuccessful direct appeal, Daire sought state habeas relief arguing that her trial counsel provided ineffective assistance by failing to argue at sentencing that her bipolar disorder was a mitigating factor. The California state courts denied relief. She sought federal habeas relief, but the district court denied the petition on the basis that Strickland’s applicability to noncapital sentencing was not clearly established. (See 28 U.S.C. § 2254(d)(1) [limiting federal habeas relief to situations where a state court unreasonably applies “clearly established Federal law, as determined by the Supreme Court of the United States”].) Held: Affirmed. Even if Strickland’s applicability during noncapital sentencing is clearly established, which the Ninth Circuit suggested it was despite circuit precedent to the contrary, the state superior court did not unreasonably apply it. Although a psychiatrist’s report linked Daire’s bipolar disorder to her recidivism, it also established that she had a history of abandoning psychiatric treatment, was prone to violent outbursts, and needed further confinement. Since the evidence may have been more damaging than mitigating, it was not unreasonable for the superior court to find that defense counsel’s decision to withhold it was tactical and nonprejudicial.