¶1Sara J. O’Connell, Covington & Burling . LLP, San Diego, CA, for Petitioner-Appellant.
¶2Kamala D. Harris, Attorney General of California; Dane R. Gillette, Chief Assistant Attorney General; Lance E. Winters, Senior Assistant Attorney General; Kenneth C. Byrne, Supervising Deputy Attorney General; Xiomara Costello, Deputy Attorney General, Los Angeles, CA, for Respondent-Appellee.
¶3Before: SIDNEY R. THOMAS, Chief Judge, STEPHEN REINHARDT, M. MARGARET MCKEOWN, RICHARD C. TALLMAN, JOHNNIE B. RAWLINSON, JAY S. BYBEE, CONSUELO M. CALLAHAN, CARLOS T. BEA, N. RANDY SMITH, MARY H. MURGUIA and PAUL J. WATFORD, Circuit Judges.
¶7We voted to rehear this case en banc to reconsider our circuit precedent holding that there was no “clearly established” federal law on the question of whether Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), governs claims for ineffective assistance of counsel in noncapital sentencing proceedings. See Cooper-Smith v. Palmateer, 397 F.3d 1236, 1244 (9th Cir.2005) and Davis v. Grigas, 443 F.3d 1155, 1158 (9th Cir.2006).
¶8In this case, a California jury convicted Daire of first-degree burglary. Daire claimed that, during sentencing, her attorney provided ineffective assistance of counsel under the standard articulated in Strickland, 466 U.S. at 687,104 S.Ct. 2052. On federal habeas review, applying our binding circuit precedent, the district court held that the application of the Strickland standard to noncapital sentencing proceedings was not “clearly established Federal law” for purposes of 28 U.S.C. § 2254(d)(1).
¶9In Glover v. United States, 531 U.S. 198, 202-04, 121 S.Ct. 696, 148 L.Ed.2d 604 (2001), the United States Supreme Court applied Strickland to a noncapital sentencing proceeding. Glover presented the question whether “a showing of prejudice,in the context of a claim for ineffective assistance of counsel, requires a significant increase in a term of imprisonment.” Id. at 204, 121 S.Ct. 696. The claim in Glover arose from noncapital sentencing proceedings governed by federal guidelines. Id. at 200, 121 S.Ct. 696. The Supreme Court reversed the Seventh Circuit for “supplanting] the Strickland analysis” in such a context. Id. at 203, 121 S.Ct. 696. In closing, Glover noted that “the ultimate merits of [petitioner’s] claim” would turn on Strickland’s elements: “the question of deficient performance” and “prejudice flowing] from the asserted error in sentencing.” Id. at 204,121 S.Ct. 696.
¶10To the extent that there was any doubt that Glover “clearly . established” that Strickland applied to noncapital sentencing proceedings, that doubt was erased in Lafler v. Cooper, — U.S.-, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012). In Lafler, the Supreme Court stated that Glover:
established] that there exists a right to counsel during sentencing in ... non-capital ... cases. Even though sentencing does not concern the defendant’s guilt or innocence, ineffective assistance of counsel during a sentencing hearing can result in Strickland prejudice because “any amount of [additional] jail time has Sixth Amendment significance.”
¶11Lafler, 132 S.Ct. at 1385-86 (second alteration in original) (citations omitted) (quoting Glover, 531 U.S. at 203, 121 S.Ct. 696).
¶12Given Glover and Lafler, the Supreme Court has clearly established that Strickland governs claims for ineffective assistance of counsel in noncapital sentencing proceedings.1See also Premo v. Moore, 562 U.S. 115, 126, 131 S.Ct. 733, 178 L.Ed.2d 649 (2011) (“Whether before, *768during, or after trial, when the Sixth Amendment applies, the formulation of the standard [for deficient performance, as an element of ineffective assistance of counsel] is the same: reasonable competence in representing the accused.”) (quoting Strickland, 466 U.S. at 688, 104 S.Ct. 2052). Therefore, we overrule our contrary decisions on which the district court relied — namely, Cooper-Smith, Davis, and all of our other decisions that are similarly to the contrary.
¶13We voted to rehear this case en banc in order to reconsider our circuit precedent. We decline as an en banc court to reach any other issue presented by the parties. While the three-judge panel that heard the appeal was bound by Cooper-Smith and Davis and issued its opinion based on that assumption, it nonetheless applied Strickland in the alternative. In issuing our order granting rehearing en banc, we instructed that the three-judge panel opinion should not be cited as precedent by or to any court of the Ninth Circuit. Daire v. Lattimore, 803 F.3d 381 (9th Cir.2015). With this correction in the law, we return control of the case to the three-judge panel. The panel, at its election, may reinstate its prior opinion or issue an amended opinion. The three-judge panel will also resolve the petition for panel rehearing on the merits. En banc proceedings with respect to this case are terminated.
¶14REMANDED.