# Johnny Lee Davis v. George Grigas

> Court of Appeals for the Ninth Circuit · April 10, 2006 · 443 F.3d 1155

URL: https://www.frixlaw.com/law-library/cases/9498830

## Case

- **Full name:** Johnny Lee DAVIS, Petitioner-Appellant, v. George GRIGAS, Respondent-Appellee
- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** April 10, 2006
- **Citations:** 443 F.3d 1155; 2006 U.S. App. LEXIS 8699; 2006 WL 903219
- **Precedential status:** Published
- **Opinion:** Concurrence by Graber
- **Judges:** Graber, Hall, Silverman
- **Cited by:** 25 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9498830

## How later opinions describe it (automated extraction)

- holding there is no clearly established federal standard for “ineffective assistance of counsel claims in noncapital sentencing cases” sufficient to support a claim for habeas relief under § 2254(d)(1)
- noting that where the Supreme Court has not established clear law, a state court’s decision cannot be contrary to or an unreasonable application of it under AEDPA

## Opinion text

GRABER, Circuit Judge,
concurring:
I concur fully in the majority’s opinion. I write separately only to question whether Cooper-Smith v. Palmateer, 397 F.3d 1236, 1244 (9th Cir.), cert. denied, - U.S. -, 126 S.Ct. 442 , 163 L.Ed.2d 336 (2005), was correct in holding broadly that the Supreme Court has failed to explain what standard applies to claims of ineffective assistance of counsel in the context of a noncapital sentence.
In Glover v. United States, 531 U.S. 198 , 121 S.Ct. 696 , 148 L.Ed.2d 604 (2001), the Court applied Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984), to a noncapital sentencing proceeding in which the defendant received a term of imprisonment. In a unanimous opinion, the Court held that a 6- to 21-month increase in the defendant’s sentence fulfilled the “prejudice” prong at the second step of the Strickland test. Glover, 531 U.S. at 202-04 , 121 S.Ct. 696 . Indeed, “any amount of actual jail time has Sixth Amendment significance.” Id. at 203 , 121 S.Ct. 696 . Because the Seventh Circuit had bypassed the first analytical step of Strickland, id. at 202, 121 S.Ct. 696 , Glover’s case was remanded for reconsideration of, among other issues, whether Glover’s counsel was deficient for failing to argue for grouping of the money laundering counts under the Sentencing Guidelines, id. at 205 , 121 S.Ct. 696 .
Additionally, I read Strickland itself simply to be discussing the way in which professional competence is to be judged in an informal setting, rather than to be suggesting that the usual two-part test does not apply. “For purposes of describing counsel’s duties,” 466 U.S. at 687 , 104 S.Ct. 2052 , the Court said that the usual criteria for an adversarial trial apply with respect to capital sentencing because of its trial-like nature. What the Court did not have to consider was only “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.” Id. at 686 , 104 S.Ct. 2052 . The Court did not suggest, though, that the basic Sixth Amendment principles embodied in its decision do not apply to noncapi-tal sentencing proceedings. Rather, it left open a specific description of counsel’s duties in an “informal” setting where “standardless discretion” prevails.
In my view, the best way to read the Supreme Court’s two cases together is to say that Strickland applies to a noncapital sentencing that is “formal” and that involves findings or conclusions that provide a standard for the imposition of sentence. I disagree with Cooper-Smith to the extent that it considers the foregoing princi- *1160 pie not to be clearly established federal law as determined by the Supreme Court, 28 U.S.C. § 2254 (d)(1).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9498830. Public record. Not legal advice.