The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
ORDER & FINDINGS AND RECOMMENDATIONS
I. Introduction and Summary
After twenty-two years of adjudicating habeas petitions, the undersigned is tempted to think that he has seen every possible factual situation for an issue, procedural or substantive, that could theoretically be present. This case proves once again that no such omniscience can be asserted.
As the following discussion indicates, petitioner raised on direct review in state court a Cronic "absence of counsel from a critical stage of the proceedings" claim which implicates the meaning of "hearing," but the Court of Appeal said nothing about the Cronic claim, instead ruling on a "competence of counsel claim" which required an extra-record factual presentation, and which of course, could not take place on direct review.*fn1 In so ruling, the Court of Appeal expressly presumed counsel's competence on a clearly absent record, but the nature of direct review precluded petitioner from rebutting the presumption with a factual presentation. A Catch 22 indeed.
For the reasons that follow: (1) to the extent the claim should be viewed as a Cronic "absence of counsel" claim*fn2 , an attorney's communication to the trial judge that he desires the matter to be taken under submission, i.e., without a hearing, does not implicate an absence of counsel from a critical stage of the proceedings; no evidentiary hearing should be had on the claim, and it should be denied; (2) to the extent that the claim is viewed as one of ineffective assistance of counsel, i.e., should the competency matter have been submitted by counsel without a hearing, any evidence on the prejudice prong would be evidence casting the previously exhausted claim in an entirely new light thus requiring a remand to the state court.
Petitioner is a state prisoner proceeding with appointed counsel with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2008 conviction for numerous sexual offenses committed against several victims. The trial court sentenced petitioner to a determinate term of twenty-five years to life and an indeterminate term of fifty-five years to life. On February 22, 2011, the petition was denied except for petitioner's claim of ineffective assistance of counsel with respect to the competency claim and the confusion surrounding his legal representation. Counsel was appointed to investigate that claim, and petitioner filed the instant motion for an evidentiary hearing on August 10, 2011. Doc. 39. There were several rounds of briefing regarding the motion and recent related Supreme Court and Ninth Circuit cases. Briefing was completed on January 25, 2012.
The following facts represent what was available in the state court record when the Court of Appeal issued its ruling:
1. On May 4, 2007, petitioner's retained trial counsel, Ms. Marie Alex, of the firm Criminal Defense Associates, filed a motion for a competency determination. Clerk's Transcript (CT) at 256.
2. On May 18, 2007, Ms. Alex appeared for petitioner, the court suspended the proceedings and appointed a physician to examine petitioner. Reporter's Transcript (RT) at 26.
3. On June 20, 2007, Ms. Alex was told by the managing partner at Criminal Defense Associates, Mr. Robert Nudelman,*fn3 that the firm was insolvent and the attorneys at the firm would no longer be paid. Ms. Alex tendered her resignation on June 22, 2007. CT at 264-69.
4. On June 22, 2007, the examining physician filed his report regarding petitioner's competency with the court. CT, Confidential Diagnostics Report.
5. On June 26, 2007, Ms. Alex sent petitioner a letter stating she would no longer be representing him, and petitioner should contact Mr. Nudelman. CT at 266.
6. On June 27, 2007, Ms. Alex sent petitioner another letter stating that she would not be representing him and he should contact Mr. Nudelman, or Ms. Kristine Burke, as soon as possible regarding the case. CT at 267.*fn4
7. On June 28, 2007, Ms. Alex filed a notice with the court that she was no longer with Criminal Defense Associates, and all future correspondence should be with Ms. Kristine Burk. CT at 264.
8. The competency hearing was held the next day on June 29, 2007, though neither Ms. Alex or Ms. Burk were present at the hearing. RT at 27. A Mr. Malgo, from Criminal Defense Associates appeared earlier in the day regarding the case, but was not present at the hearing. Id. Appearing at the hearing was a Ms. Davidson, who was apparently present during a conversation earlier regarding the case, that was not on the record. Id. Ms. Davidson agreed to submit on the doctor's report for the competency hearing. RT at 28. The court indicated that Mr. Malgo, who appeared on behalf of Criminal Defense Associates, was intending on submitting on the doctor's report. RT at 27-28. Petitioner was found to be competent. Id.
9. Ms. Burke appeared on July 26, 2007, for petitioner and continued to represent him pro bono. RT (Augmented) at 44. The court indicated that a competency hearing took place and petitioner was found competent. Id.
The undersigned will also include the entire transcript from the hearing that occurred at 10:30 am:
(Whereupon the matter was called with no response at 8:30)
THE COURT: This is the case of Charles Smith. Do we have Mr. Smith in court? Mr. Malgo (phonetic) appeared earlier on behalf of the county [sic].
MS. DAVIDSON: I will make a special appearance. I overheard a conversation earlier.
THE COURT: Mr. Smith, there is a real question regarding who your lawyer is. I received some correspondence indicating that the attorney who has been appearing on your behalf, a Mary Alex, apparently is no longer with the firm. But then another attorney on behalf of that firm was here this morning. It's just unclear who your lawyer is.
Have you had any communication with anybody on this?
DEFENDANT SMITH: No, sir.
THE COURT: Okay. The most important thing is that you are represented by counsel. The attorney that appeared here earlier this morning appeared on behalf of a member of the firm which is known as The Criminal Defense Associates.
And that firm is the firm of record in your case.
And what happened was the issue before the court today was whether or not you were competent to stand trial. We have received the doctor's report, and it is my understanding that both the People and defense are prepared to submit that issue on ...