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Robert W. Washington v. D. G. Adams

February 26, 2013

ROBERT W. WASHINGTON,
PETITIONER,
v.
D. G. ADAMS, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS TO DENY PETITION FOR WRIT OF HABEAS CORPUS (Doc. 1) ORDER DIRECTING THAT OBJECTIONS BE FILED WITHIN TWENTY DAYS

Petitioner is a state prisoner proceeding pro se counsel with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

PROCEDURAL HISTORY

Petitioner is in custody of the California Department of Corrections and Rehabilitation ("CDCR") serving an indeterminate sentence of thirty-two years to life plus a determinate sentence of twenty-three years, pursuant to a June 7, 2006 judgment of the Superior Court of California, County of Kern (the "Superior Court"), for one count each of assault with a semi-automatic firearm (Cal. Pen. Code § 245(b)), and making a criminal threat (Cal. Pen. Code § 422(a)), and two lesser-included misdemeanors. (Lodged Document "LD" 19 (Clerk's Transcript on Appeal ("CT") 126; 236-237; 240-246). The jury also found that Petitioner had suffered nine prior "serious" or "violent" felonies (Cal. Pen. Code §§ 667 and 667.5), and found true a special allegation of personal use of a firearm (Cal. Pen. Code § 12022.5(a)). (LD 21, pp. 3-4).

Petitioner subsequently filed a direct appeal, raising challenges to four jury instructions and 2 two challenges to his sentence, in the California Court of Appeals, Fifth Appellate District (the "5th DCA"), which affirmed the conviction in an unpublished on January 8, 2008. (LD 4). On March 12, 4 3 2008, the California Supreme Court denied Petitioner's Petition for Review. (LD 11; 12). Petitioner 5 filed a state habeas petition in Superior Court that was denied on December 16, 2008, raising the three 6 claims of ineffective assistance of counsel. (LD 5; 6). On February 20, 2009, the 5th DCA denied 7 Petitioner's subsequent state habeas petition. (LD 7; 8). The California Supreme Court denied 8 Petitioner's final state petition on September 17, 2009. (LD 9; 10). 9

On October 1, 2009, Petitioner filed the instant petition, raising the three grounds for relief relating to ineffective assistance of counsel. (Doc. 1). On October 26, 2009, Petitioner filed an addendum to the petition and a motion to supplement the petition with five additional claims exhausted in his direct appeal, including the instructional and sentencing challenges. (Doc. 10). Through an administrative error, the Court did not rule on Petitioner's October 26, 2009 motion before Respondent filed an answer to the original petition and its three ineffectiveness claims on May 17, 2010. (Doc. 24). Petitioner duly filed his Traverse to the original Answer on August 25, 2010. (Doc. 30). Because the Traverse addressed issues raised in the addendum, Respondent objected and filed a motion to permit a sur-Reply. (Doc. 31). On September 13, 2010, recognizing the error, the Court granted Petitioner's motion to supplement his original petition with the five claims contained in the addendum and granted Respondent additional time to file an Answer to those new claims. (Doc. 32). On November 12, 2010, Respondent filed a supplemental Answer (Doc. 34), and on June 22, 2011, Respondent filed a supplemental Traverse. (Doc. 39).

Respondent concedes that all eight grounds for relief in the petition and supplemental petition have been fully exhausted. (Doc. 24, p. 7; Doc. 34, p. 2).

FACTUAL BACKGROUND

The 5th DCA's unpublished decision does not contain a summary of the pertinent facts in the case since Petitioner raised only instructional and sentencing issues in his direct appeal. However, in his first state habeas proceeding, the Superior Court's written decision contains a brief statement of facts that the Court will adopt:

The incident occurred on or about March 16, 2006. At the time, April Sumlin and Montez Sumlin Sr., an ex-spouse [were] estranged. Ms. Sumlin began a romantic relationship with 2 petitioner. Apparently, as gleaned from the transcript of the preliminary hearing, petitioner and Mr. Sumlin Sr. had argued because April Sumlin informed Montez Sumlin Sr. that he better 3 pick up their children because she was afraid of petitioner. Meanwhile, April Sumlin informed petitioner that she wanted to put [petitioner's] remaining belongings on the front step of the apartment where Montez Sumlin resided. What ensued during the evening was that Mr. 4 5 Montez Sumlin was punched by petitioner and struck on the back of his head by an automatic weapon after opening a gash requiring several staples to close. When Mr. Jeffrey Davis was 6 awakened by the commotion, he came out to investigate. Petitioner brandished the weapon by pointing it at the face of Davis and threatening to kill him if he did not go back into the apartment. Petitioner ran to the car where Ms. Sumlin was sitting with her son Montez Sumlin, 7 8 Jr. and left her premises.

(LD 6, pp. 1-2).

DISCUSSION

I. Jurisdiction

Relief by way of a petition for writ of habeas corpus extends to a person in custody pursuant to the judgment of a state court if the custody is in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 n. 7 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the United States Constitution. The challenged conviction arises out of the Kern County Superior Court, which is located within the jurisdiction of this court. 28 U.S.C. § 2254(a); 28 U.S.C.§ 2241(d).

On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to all petitions for writ of habeas corpus filed after its enactment. Lindh v. Murphy, 521 U.S. 320 (1997), cert. denied, 522 U.S. 1008, 118 S.Ct. 586 (1997); Jeffries v. Wood, 114 F.3d 1484, 1500 (9th Cir. 1997), cert. denied, 520 U.S. 1107 (1997), overruled on other grounds by Lindh v. Murphy, 521 U.S. 320 (holding the AEDPA only applicable to cases filed after statute's enactment). The instant petition was filed after the enactment of the AEDPA and is therefore governed by its provisions.

II. Legal Standard of Review

A petition for writ of habeas corpus under 28 U.S.C. § 2254(d) will not be granted unless he can show that the state court's adjudication of his claim:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d); Lockyer v. Andrade, 538 U.S. 63, 70-71 (2003); Williams v. Taylor, 529 U.S. 6 at 412-413. 7

A state court decision is "contrary to" clearly established federal law "if it applies a rule that 8 contradicts the governing law set forth in [the Supreme Court's] cases, or "if it confronts a set of facts 9 that is materially indistinguishable from a [Supreme Court] decision but reaches a different result." Brown v. Payton, 544 U.S. 133, 141 (2005), citing Williams v. Taylor, 529 U.S. 326, 405-406 (2000). A state court decision involves an "unreasonable application" of clearly established federal law "if the state court applies [the Supreme Court's precedents] to the facts in an objectively unreasonable manner." Id., quoting Williams, 529 U.S. at 409-410; Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002)(per curiam).

Consequently, a federal court may not grant habeas relief simply because the state court's decision is incorrect or erroneous; the state court's decision must also be objectively unreasonable. Wiggins v. Smith, 539 U.S. 510, 511 (2003) (citing Williams v. Taylor, 529 U.S. at 409). In Harrington v. Richter, 562 U.S. ___ , 131 S.Ct. 770 (2011), the U.S. Supreme Court explained that an "unreasonable application" of federal law is an objective test that turns on "whether it is possible that fairminded jurists could disagree" that the state court decision meets the standards set forth in the AEDPA. If fairminded jurists could so disagree, habeas relief is precluded. Richter, 131 S.Ct. at 786. As the United States Supreme Court has noted, AEDPA's standard of "contrary to, or involv[ing] an unreasonable application of, clearly established Federal law" is "difficult to meet," because the purpose of AEDPA is to ensure that federal habeas relief functions as a "'guard against extreme malfunctions in the state criminal justice systems,'" and not as a means of error correction. Richter, 131 S.Ct. at 786, quoting Jackson v. Virginia, 443 U.S. 307, 332, 99 S.Ct. 2781, n. 5 (1979)(Stevens, J., concurring in judgment). The Supreme Court has "said time and again that 'an unreasonable application of federal law is different from an incorrect application of federal law.'" Cullen v. Pinholster, 131 S.Ct. 1388, 1410-1411 (2011). Thus, a state prisoner seeking a writ of habeas corpus from a federal court "must show that the state court's ruling on the claim being presented in federal 2 court was so lacking in justification that there was an error well understood and comprehended in 3 existing law beyond any possibility of fairminded disagreement." Richter, 131 S.Ct. at 787-788. 4

Moreover, federal "review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits." Cullen, 131 S.Ct. at 1398 ("This backward-looking 6 language requires an examination of the state-court decision at the time it was made. It follows that 7 the record under review is limited to the record in existence at the same time--i.e., the record before the 8 state court.") 9

The second prong of federal habeas review involves the "unreasonable determination" clause of 28 U.S.C. § 2254(d)(2). This prong pertains to state court decisions based on factual findings. Davis v. Woodford, 384 F.3d at 637, citing Miller-El v. Cockrell, 537 U.S. 322 (2003). Under § 2254(d)(2), a federal court may grant habeas relief if a state court's adjudication of the petitioner's claims "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." Wiggins v. Smith, 539 U.S. at 520; Jeffries v. Wood, 114 F.3d at 1500 (when reviewing a state court's factual determinations, a "responsible, thoughtful answer reached after a full opportunity to litigate is adequate to support the judgment"). A state court's factual finding is unreasonable when it is "so clearly incorrect that it would not be debatable among reasonable jurists." Id. ; see Taylor v. Maddox, 366 F.3d 992, 999-1001 (9th Cir. 2004), cert.denied, Maddox v. Taylor, 543 U.S. 1038 (2004).

The AEDPA also requires that considerable deference be given to a state court's factual findings. "Factual determinations by state courts are presumed correct absent clear and convincing evidence to the contrary, § 2254(e)(1), and a decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state court proceedings, § 2254(d)(2)." Miller-El v. Cockrell, 537 U.S. at 340. Both subsections (d)(2) and (e)(1) of § 2254 apply to findings of historical or pure fact, not mixed questions of fact and law. See Lambert v. Blodgett, 393 F.3d 943, 976-077 (2004).

To determine whether habeas relief is available under § 2254(d), the federal court looks to the last reasoned state court decision as the basis of the state court's decision. See Ylst v. Nunnemaker, 501 U.S. 979, 803 (1991); Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). Where the state 2 court decided the petitioner's claims on the merits but provided no reasoning for its decision, the 3 federal habeas court conducts "an independent review of the record...to determine whether the state 4 court [was objectively unreasonable] in its application of controlling federal law." Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2002); see Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003).

"[A]lthough we independently review the record, we still defer to the state court's ultimate decisions."

Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002). Where the state court denied the petitioner's 8 claims on procedural grounds or did not decide such claims on the merits, the deferential standard of 9 the AEDPA do not apply and the federal court must review the petitioner's 's claims de novo. Pirtle v. Morgan, 313 F.3d at 1167.

The prejudicial impact of any constitutional error is assessed by asking whether the error had "a substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 623 (1993); see also Fry v. Pliler, 551 U.S. 112, 119-120 (2007)(holding that the Brecht standard applies whether or not the state court recognized the error and reviewed it for harmlessness). Some constitutional errors, however, do not require that the petitioner demonstrate prejudice. See Arizona v. Fulminante, 499 U.S. 279, 310 (1991); United States v. Cronic, 466 U.S. 648, 659 (1984). Furthermore, where a habeas petition governed by the AEDPA alleges ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984), the Strickland prejudice standard is applied and courts do not engage in a separate analysis applying the Brecht standard. Avila v. Galaza, 297 F.3d 911, 918 n. 7 (9th Cir. 2002); Musladin v. Lamarque, 555 F.3d 830, 835 (9th Cir. 2009).

III. Review of Petitioner's Claims.

The instant petition itself alleges the following grounds for relief: (1) ineffective assistance of counsel in failing to investigate the case; (2) ineffective assistance of counsel in failing to make objections; (3) ineffective assistance of counsel in failing to call certain witnesses; (4) instructional error in the reasonable doubt instruction; (5) instructional error in CALCRIM No. 1300; (6) giving CALCRIM No. 224 lowered the prosecution's burden of proof; (7) imposition of the upper term sentences violated Petitioner's Sixth and Fourteenth amendment rights to a jury trial and due process; 2 and (8) insufficient evidence to prove one of the prior convictions. (Docs. 1 & 10). 3

A. Ineffective Assistance of Counsel (Failure to Investigate)

Petitioner initially contends that he was denied his Sixth Amendment right to the effective 5 assistance of trial counsel because his attorney failed to properly investigate and raise Petitioner's lack 6 of competency at the time of the offense and his incompetency to stand trial. (Doc. 1, p. 7). These 7 contentions are without merit. 8

1. The Superior Court Ruling.

The Superior Court rejected Petitioner's claims as follows:

Petitioner contends that due to his developmental disability, and being under psychiatric care, petitioner was incompetent to stand trial. The statutory requirements of competency to stand trial are such that petitioner is unable to understand the proceedings, and unable to assist his counsel in conducting his defense. P.C. Sections 1368, 1370.1. The trial judge can raise this matter, P.C. Section 1368(a), or defense counsel can raise it in a motion. P.C. Section 1368(b). Petitioner does not supply enough information to this court. For example, for what mental illness was petitioner under psychiatric care? What is the nature of his developmental disability? Petitioner supplies no transcripts to show any doubt on either the part of the trial judge or his counsel, that petitioner did not understand the nature of the proceedings. The fact that a defendant is recalcitrant or uncooperative does not necessarily mean that he or she is incompetent. [Citations.] In fact, petitioner's comment at the end of the preliminary hearing that "if only the judge knew the whole story", points to his understanding of the proceedings. Petitioner provides no declaration about informing his counsel of any impediments to his assisting counsel with the conduct of the trial. He provides no transcripts that the trial judge doubted petitioner's competency. [Citations.] There is no abuse of discretion where the judge had no doubt that the defendant understood proceedings or demonstrate [sic] lack of competency at trial. [Citation.] (LD 6, p. 3).

2. Petitioner Was Not Denied The Effective Assistance Of Counsel.

Effective assistance of appellate counsel is guaranteed by the Due Process Clause of the Fourteenth Amendment. Evitts v. Lucey, 469 U.S. 387, 391-405 (1985). Claims of ineffective assistance of appellate counsel are reviewed according to Strickland 's two-pronged test. Miller v. Keeney, 882 F.2d 1428, 1433 (9th Cir.1989);United States v. Birtle, 792 F.2d 846, 847 (9th Cir.1986); see also Penson v. Ohio, 488 U.S. 75(1988) (holding that where a defendant has been actually or constructively denied the assistance of appellate counsel altogether, the Strickland standard does not apply and prejudice is presumed; the implication is that Strickland does apply where counsel is present but ineffective).

To prevail, Petitioner must show two things. First, he must establish that appellate counsel's deficient performance fell below an objective standard of reasonableness under prevailing professional 3 norms. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052 (1984). Second, Petitioner 4 must establish that he suffered prejudice in that there was a reasonable probability that, but for 5 counsel's unprofessional errors, he would have prevailed on appeal. Id. at 694. A "reasonable 6 probability" is a probability sufficient to undermine confidence in the outcome of the appeal. Id. The 7 relevant inquiry is not what counsel could have done; rather, it is whether the choices made by counsel 8 were reasonable. Babbitt v. Calderon, 151 F.3d 1170, 1173 (9th Cir.1998). 9

With the passage of the AEDPA, habeas relief may only be granted if the state court decision unreasonably applied this general Strickland standard for ineffective assistance. Knowles v. Mirzayance, 556 U.S. ___, 129 S.Ct. 1411, 1419 (2009). Accordingly, the question "is not whether a federal court believes the state court's determination under the Strickland standard "was incorrect but whether that determination was unreasonable--a substantially higher threshold." Schriro v. Landrigan, 550 U.S. 465, 473 (2007); Knowles v. Mirzayance, 556 U.S. ___, 129 S.Ct. at 1420. In effect, the AEDPA standard is "doubly deferential" because it requires that it be shown not only that the state court determination was erroneous, but also that it was objectively unreasonable. Yarborough v. Gentry, 540 U.S. 1, 5 (2003). Moreover, because the Strickland standard is a general standard, a state court has even more latitude to reasonably determine that a defendant has not satisfied that standard. See Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)("[E]valuating whether a rule application was unreasonable requires considering the rule's specificity. The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations").

As a preliminary matter, the Court must determine what standard of review to apply to the first three grounds for relief as a result of their different procedural postures. Respondent notes that grounds one and three were presented to the Superior Court in a state habeas petition, which included an exhibit, the affidavit of Montez Sumlin, Jr., in support of ground three. (LD 5; 6). Petitioner then presented all three ineffectiveness claims to the Court of Appeal, but without any supporting exhibits, and those three claims were summarily denied without a reasoned decision. (LD 7; 8). Finally, Petitioner presented all three claims to the California Supreme Court, including five exhibits, and these claims were again summarily denied. (LD 10). Under the "look through" doctrine of Ylst v. Nunnemaker, 501 U.S. 797, 804-805 n. 3 (1991), the federal court will "look through" the summary 3 denials to the last reasoned decision of the state court.

Thus, as Respondent correctly reasons, the last reasoned decision vis-a-vis ground one and that part of ground three for which no new exhibits were presented to the state high court, was the Superior Court denial of Petitioner's first state habeas petition. In so doing, the Court will apply the standard 7 described supra, i.e., whether the state court adjudication was contrary to or an unreasonable 8 application of clearly established federal law, as set forth in Strickland. 28 U.S.C. § 2254(d). 9

However where, as in ground two and a portion of ground three, the state court decided the petitioner's claims on a summary denial on the merits, but provided no reasoning for its decision, the federal habeas court conducts "an independent review of the record...to determine whether the state court [was objectively unreasonable] in its application of controlling federal law." Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2002); see Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). "[A]lthough we independently review the record, we still defer to the state court's ultimate decisions." Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002).

The state court will be deemed to have adjudicated the federal constitutional claim if it either cites directly to federal authority or cases which themselves rested on federal authority. Baker v. Blaine, 221 F.3d 1108, 1112 (9th Cir. 2000). As to ground one and part of ground three, both alleging ineffective assistance of counsel, the last reasoned decision was that of the Superior Court, which applied the following legal standard to those claims:

To prove ineffectiveness of counsel, petitioner needs to show that counsel's representation fell below professional norms, and that petitioner suffered prejudice[.] Petitioner needs to show [ ] a causal relationship between the defective representations making it probable that petitioner would be either acquitted or convicted of a lesser included offense. Strickland v. Washington (1984) 466 U.S. 668, 594. Petitioner needs to show prejudice as a demonstrable reality, not a figment of petitioner's imagination. In re Avena (1996) 12 Cal.4th 694, 727, In re Sino (1989)

48 Cal.3d 1247, 1257 . (LD 6, p. 2).

Having identified the appropriate standards of review, the Court now turns to the merits of Petitioner's contentions. Petitioner's claim that his attorney failed to properly investigate potential mental health defenses is deficient for several reasons. First, counsel's failure to investigate and raise a mental health defense is insufficient only if the petitioner can establish that counsel had reason to 2 know that petitioner's mental health might be impaired. Hoffman v. Arave, 455 F.3d 926, 932 (9th Cir. 2006), vacated in part on other grounds by Arave v. Hoffman, 128 S.Ct. 749, 169 L.Ed.2d 580 (2008); U.S. v. Miller, 907 F.2d 994, 998-999 (10th Cir. 1990(ineffective assistance of counsel claim 5 insufficient without evidence that petitioner told counsel relevant information). Here, however, 6 nothing in the record indicates that Petitioner made his attorney aware of potential mental health 7 problems. Indeed, it appears that Petitioner is contending that the fact that he was being housed at the 8 Kern County Mental Health correctional facility was, by itself, sufficient information to alert counsel 9 to the fact that Petitioner had mental health issues. As Respondent observes, no Supreme Court authority holds that the mere fact that an inmate is being housed in a mental health facility imposes on counsel a Sixth Amendment obligation to investigate mental health issues for a trial defense.

Second, even had counsel investigated and found evidence to support a mental health defense, such evidence would have been inconsistent with the defense presented at trial, i.e., that the victim, not Petitioner, started the altercation by throwing the first punch. Clearly, the jury found some of that defense persuasive since it acquitted Petitioner of the more serious felony assault charge against Sumlin, Sr. Whether foregoing such a defense in lieu of a potential mental health defense would have obtained a better result for Petitioner is, at this juncture, sheer speculation. Counsel made a strategic decision to present the defense that he used, and this Court will not now second-guess counsel's strategic choices. United States v. Mayo, 646 F.2d 369, 375 (9th Cir. 1981)(difference in opinion as to trial tactics does not constitute denial of effective assistance); Bashor v. Risley, 730 F.2d 1228, 1241 (9th Cir. 1984) (tactical decisions are not ineffective assistance simply because in retrospect better tactics are known to have been available).

In short, Petitioner fails to establish either prong of Strickland regarding counsel's failure to investigate the mental health issues. However, based on the foregoing, a similar conclusion is required for Petitioner's contention that counsel was deficient in not obtaining a confidential psychological expert. Where the evidence does not warrant it, the failure to call an expert does not amount to ineffective assistance of counsel. See Wilson v. Henry, 185 F.3d 986, 990 (9th Cir. 1999). As discussed above, Petitioner has not established that he advised counsel of his mental health issues; thus, counsel's failure to retain a confidential expert was not deficient representation. Nor, as stated 2 above, can Petitioner show prejudice, given trial counsel's strategic decision to pursue a defense that 3

Petitioner did not commit the acts for which he was charged. Accordingly, Petitioner has not 4 established either prong of Strickland as to this aspect of his ineffective assistance claim. 5

Next, Petitioner contends that his attorney was ineffective for failing to investigate and

6 challenge Petitioner's competency to stand trial. Again, this contention is without merit. 7

A defendant is competent to stand trial if he understands the proceedings and is able to assist

8 his attorney in his own defense. See Dusky v. United States, 362 U.S. 402 (1960). Competency to 9 stand trial requires "the mental acuity to see, hear and digest the evidence, and the ability to communicate with counsel in helping to prepare an effective defense." Odle v. Woodford, 238 F.3d 1084, 1089 (9th Cir. 2001)(citing Dusky, 362 U.S. at 402). Convictions of legally incompetent persons violate due process, and where the evidence raises a bona fide doubt about the defendant's competency, due process requires that a full competency hearing be conducted. Pate v. Robinson, 383 U.S. 375 (1966). However, such a hearing is not required absent a "substantial" or "bona fide" doubt as to the defendant's competence. Hernandez v. Ylst, 930 F.2d 714, 716 (9th Cir. 1991). A habeas petitioner is entitled to such a hearing if he presents sufficient facts to create a real and substantial doubt as to his competency, even if those facts were not presented to the trial court. Steinsvik v. Vinzant, 640 F.2d 949, 954 (9th Cir. 1981). Thus, a showing of "either extremely erratic and irrational behavior during the course of the trial" or "lengthy histories of acute psychosis and psychiatric treatment" may suffice to establish incompetency to stand trial. Boag v. Raines, 769 F.2d 1341, 1343 (9th Cir. 1985).

Nothing in the transcript of Petitioner's trial even remotely suggests the type of in-trial conduct the Ninth Circuit requires to establish incompetency. Thus, the only remaining question is whether Petitioner's history of mental problems will suffice to show ineffectiveness. Petitioner indicates that in 1992 and 1994 he attempted suicide, i.e., twelve to fourteen years before the 2006 trial. (Doc. 1,

Ex. C). Those circumstances, occurring over a decade prior to trial, do not, by themselves, establish that Petitioner was incompetent to stand trial in 2006. See Chavez v. United States, 656 F.2d 512, 518 (9th Cir. 1981)(psychiatric report indicating incompetence may lose its probative value over time).

Petitioner's contention that he was on medication, i.e., Wellbutrin and Seroquel, during trial is

2 equally unavailing. (Doc. 1, Ex. A). As Respondent observes, Exhibit A, while showing that these 3 medications were indeed prescribed, also indicates that ...


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