Smith v. Mitchell
Opinion
Opinion
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SHIRLEY REE SMITH, No. 04-55831 Petitioner-Appellant, v. D.C. No.
CV-01-04484-ABC
DEBORAH L. PATRICK, Warden,
ORDER
Respondent-Appellee. Filed February 27, 2008
Before: Harry Pregerson and William C. Canby, Jr., Circuit Judges, and Edward C. Reed, Jr.,* District Judge.
ORDER
The State has filed a petition for panel and en banc rehear- ing of our order reinstating our decision granting habeas cor- pus relief to appellant Smith. See Smith v. Patrick, 508 F.3d 1256 (9th Cir. 2007). By supplemental letter, see Fed. R. App. P. 28(j), the State has called our attention to the Supreme Court’s recent decision in Wright v. Van Patten, 128 S. Ct. 743 (2008) (per curiam). In Van Patten, the Seventh Circuit had held that an attorney’s appearance by speaker phone at a plea hearing constituted ineffective assistance of counsel that was inherently prejudicial under United States v. Cronic, 466 U.S. 648 (1984). See Van Patten v. Deppisch, 434 F.3d 1038 (7th Cir. 2006). The Supreme Court vacated the decision and remanded for reconsideration in light of Carey v.…