SMITH v. MITCHELL
The Ninth Circuit Court of Appeals today released an opinion in SMITH v. MITCHELL, No. 04-55831, a habeas corpus appeal. The panel consisted of Harry Pregerson and William C. Canby, Jr., Circuit Judges, and Edward C. Reed, Jr., District Judge.
The State has filed a petition for panel and en banc rehearing of our order reinstating our decision granting habeas corpus 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. Musladin, 127 S. Ct. 649 (2006). See Schmidt v. Van Patten, 127 S. Ct. 1120 (2007) (mem.). On remand, the Seventh Circuit adhered *The Honorable Edward C. Reed, Jr., Senior United States District Judge for the District of Nevada, sitting by designation. 1703 . . .