FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding with an application for writ of habeas corpus under 28 U.S.C. § 2254. On June 18, 2001, in the Butte County Superior Court, petitioner through his trial counsel entered a dual plea of not guilty and not guilty by reason of insanity to the charges set forth in an amended information. (Reporter's Transcript on Appeal (RT-I*fn1 ) at 6.) On April 11, 2002, petitioner withdrew his previously entered plea and entered pleas of no contest to assault with a firearm on a police officer, kidnapping, first degree robbery, and resisting an officer. (RT-II at 6.) With sentencing enhancements for causing great bodily injury and intentional use of a firearm causing great bodily injury, petitioner was sentenced to an aggregate term of 49 years in state prison. (RT-II at 23-25.) On appeal, the California Court of Appeal for the Third Appellate District modified the judgment due to sentencing error, thereby reducing petitioner's sentence to a total aggregate term of 36 years and four months. (Resp't Lodged Doc. 4, Opinion at 3-6.) As modified, petitioner's judgment of conviction was affirmed. (Id. at 7.)
Petitioner seeks federal habeas relief on the grounds that: (1) he was denied the effective assistance of counsel when his attorney failed to raise the issue of petitioner's developmental disability and its impact on his competency to stand trial; (2) the trial court failed to "personally" take a voluntary and intelligent waiver of his right to a trial in violation of his due process rights; and (3) he was denied effective assistance of appellate counsel when his attorney on appeal failed to raise potentially meritorious constitutional claims. Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's application for habeas corpus relief be denied.
FACTUAL AND PROCEDURAL BACKGROUND
Because there was no trial and the issues on appeal were limited to claims of sentencing error, the following factual summary of the events of September 24, 2000, is taken from the presentence report prepared in petitioner's case.*fn2
The victim stated that he was employed as a driver by American Taxi. He responded to an apartment complex to pick up a fare, however, he was unable to locate the fare. While leaving, he was flagged down by [petitioner], who requested transportation. The [petitioner] entered the vehicle and sat in the middle of the rear seat. The [petitioner] introduced himself as "Mike" and said he was intoxicated. The [petitioner] requested to be transported to a residence on Hicks Lane, although he did not know the specific address and did not have any money to pay for transportation. The victim stopped the vehicle to talk to the [petitioner] when he noticed the [petitioner] had a short-barreled shotgun in his hand.
The [petitioner] instructed the victim to drive to Hicks Lane and stated that he would then decide if he was going to take the victim's money or not. The victim continued to drive and attempted to signal another taxi cab driver that he needed help. However, his efforts were unsuccessful. The [petitioner] told the victim not to make any kind of signal to any other drivers.
The victim said he feared for his life and decided he would escape from the vehicle when he stopped for a red traffic signal light. When he stopped, he grabbed his bag of receipts and cash ($242.00), opened the driver's side door, felt and heard the shotgun blast, stepped out of the vehicle, and began emptying his pockets. The victim thought if the [petitioner] was going to rob him, he might as well make it easier and perhaps the [petitioner] would not shoot him again. The victim said he began to run towards the Enloe [hospital] outpatient building. He heard the [petitioner] exit the vehicle and run behind him for a short while. The [petitioner] then returned to the vehicle and drove away. The victim said he returned to collect his bag of receipts and cash. He then saw Lynetta D. in her vehicle, so he ran to her for help and she transported him to the hospital.
* * *... Officers then received notice of a traffic collision on Manzanita Avenue in front of Hooker Oak Park. Officers located the missing taxicab. The engine was running although there were no occupants. The officers were advised that the [petitioner] might be armed with a weapon.
The officer advised dispatch of the events. A few minutes later, another CPD officer located the [petitioner] in the Hooker Oak Park Recreation Area parking lot. The officers noted the [petitioner] was armed with a bolt-action sawed-off shotgun. While additional officers were responding, the [petitioner] waived [sic] the shotgun around. In response, the officers told the [petitioner] to put the gun down several times however, the [petitioner] continued to wave the gun around while yelling "Fuck you, cops. Go ahead and shoot me." The [petitioner] then lowered the gun to a shooting position and took aim. The officer was forced to shoot the [petitioner].
While at the hospital, a medical staff member provided the officer with blood test results. The officer noted the [petitioner] tested positive for methamphetamine, marijuana, and alcohol.
The officers then proceeded to [petitioner's] hospital room. As they walked into the room, [petitioner] said, "Where is my lawyer? Just so you know I ain't answering any questions without my lawyer.["] An officer advised [petitioner] he was under arrest. As the officer advised the [petitioner] of his Miranda Rights, the [petitioner] began to recite the Miranda Warning and then said "the voices, they wouldn't fucking stop." He said the "voices" had been talking to him all week long and making him feel "shitty" about everything. The voices were telling him to hurt himself. He then said "they are just going to stick me in a mental institution, I'm cool but I'd rather go to jail." (Clerk's Transcript on Appeal (CT) at 150-56.)
Immediately following petitioner's entry of his dual plea of not guilty and not guilty by reason of insanity on June 18, 2001, the Butte County Superior Court ordered a psychiatric evaluation to be conducted by a board certified psychiatrist, Dr. Lancaster.*fn3 (CT at 112-13.) The evaluation was to determine whether petitioner was insane at the time of the charged offenses and whether he was competent to stand trial. (Id.) On August 6, 2001, Dr. Lancaster submitted his report reflecting his opinion that petitioner was sane at the time of the charged offenses and needed no psychiatric treatment or medications because he did not suffer from mental illness, either in the past or on the date the report was authored. (CT at 119.) On August 27, 2001, the trial court ordered another independent evaluation of petitioner by a licensed psychologist and qualified medical examiner, Dr. Wuehler. (RT-I at 8.) The court also requested that Dr. Lancaster prepare a supplemental report to further clarify whether or not, in Dr. Lancaster's opinion, petitioner was insane at the time of the crime. (CT at 121-22.) On October 2, 2001, the trial court received Dr. Wuehler's report and on October 10, 2001 received the supplemental report of Dr. Lancaster. (CT at 123-24.) Both doctors concluded that petitioner was sane at the time the offenses were committed and capable of understanding the nature of his actions and of distinguishing right from wrong. (CT at 119, 123 & 136.) In his report Dr. Wuehler also specifically found that petitioner was capable of assisting his attorney with his defense. (CT at 132.)
On April 11, 2002, trial counsel appeared with petitioner in the Butte County Superior Court and advised the trial judge that he and petitioner had met that morning to discuss a proposed plea agreement. (RT-II at 1.) Trial counsel informed the court, in petitioner's presence, that petitioner had agreed to plead no contest to assault with a firearm, kidnapping, first degree robbery, and resisting an officer. (Id.)*fn4 The trial court indicated it would allow petitioner to withdraw his not guilty and not guilty be reason of insanity pleas in order to accept this plea agreement with the prosecution. (Id. at 6.) The court was provided with a completed entry of plea form executed by petitioner in which petitioner indicated that he understood the nature of the charges, the consequences of his plea and his constitutional rights. (CT at 140-44.) In addition, the trial court engaged in an abbreviated plea colloquy with petitioner in open court to ensure that petitioner understood the plea agreement in his case, the possible consequences of his plea and that the plea was being freely and voluntarily made. (RT-II at 6-10.) In accepting petitioner's plea, the court found that petitioner had voluntarily and intelligently waived his constitutional rights, that his pleas and admissions were freely and voluntarily made and that there was a factual basis for those pleas and admissions. (CT at 144; RT-II at 10.)
After petitioner's plea was entered, trial counsel requested that the court review the preliminary hearing transcript prior to sentencing to better understand petitioner's history and personal background. (RT-II at 11.) Trial counsel acknowledged that his client had previously entered a dual plea of not guilty and not guilty by reason of insanity and had a history of mental health problems. (Id.) Nonetheless, counsel stated that in light of the psychiatric evaluations from Dr. Lancaster and Dr. Wuehler, it was counsel's evaluation that petitioner's mental health problems would not serve to be an effective defense to the charges pending against him and that those charges posed the potential imposition of two life sentences. (Id.) Based on the foregoing, the facts of the case and their discussions, trial counsel informed the court that petitioner had decided to accept the plea offer of a determinate term sentence which was ...