FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CLIFTON MAXWELL, No. 08-55534
Petitioner-Appellant,
D.C. No.
v.
5:01-cv-00131-
ERNIE ROE, Warden California SGL-RZ
State Prison, Los Angeles County,
OPINION
Respondent-Appellee.
Appeal from the United States District Court
for the Central District of California
Stephen G. Larson, District Judge, Presiding
Argued and Submitted
December 10, 2009—Pasadena, California
Filed May 20, 2010
Before: Harry Pregerson, John T. Noonan and
Richard A. Paez, Circuit Judges.
Opinion by Judge Paez
7207
MAXWELL v. ROE 7211
COUNSEL
Patrick Morgan Ford, San Diego, California, for plain-
tiff-appellant Clifton Wayne Maxwell.
Edmund G. Brown, Jr., Attorney General of California, Gary
W. Schons, Senior Assistant Attorney General, Kevin Vienna,
Supervising Deputy Attorney General, and Rhonda
Cartwright-Ladendorf, Supervising Deputy Attorney General,
San Diego, California, for respondent-appellee Ernie Roe,
Warden.
OPINION
PAEZ, Circuit Judge:
A criminal defendant has a constitutional due process right
not to be tried or convicted while incompetent to stand trial.
This right not only assures that a defendant has the present
ability to consult with counsel, to understand the nature and
object of the proceedings against him, and to aid in the prepa-
ration of his defense, Dusky v. United States, 362 U.S. 402,
7212 MAXWELL v. ROE
402 (1960), it is “fundamental to an adversary system of jus-
tice.” Drope v. Missouri, 420 U.S. 162, 172 (1975).
Here, Clifton Wayne Maxwell appeals from the district
court’s judgment denying his petition for a writ of habeas cor-
pus. Maxwell argues that at the time of his January 1998 state
court trial for first degree murder he was incompetent to stand
trial and that the state court denied him due process in failing
to hold, sua sponte, a competency hearing. At the time of
trial, Maxwell had a history of mental illness, frequently
refused to take his prescribed antipsychotic medications, was
unable to verbally or physically control himself in the court-
room, and exhibited increasingly paranoid and psychotic
behavior that impaired his communication with defense coun-
sel and reasoning regarding his defense. Furthermore, during
the trial, Maxwell attempted suicide and spent a substantial
portion of the trial involuntarily committed to a hospital psy-
chiatric ward. Despite these circumstances, the trial judge
never doubted Maxwell’s competence.
Because we conclude that the state appellate court’s deci-
sion to affirm the trial court’s finding that Maxwell was not
entitled to a hearing on his competence was based on an
unreasonable determination of the facts in light of the evi-
dence known by the trial judge at the time of trial and an
unreasonable application of federal law as established by
Drope, and Pate v. Robinson, 383 U.S. 375 (1966), we
reverse and remand.1
I. Factual and Procedural History
On December 27, 1994, Maxwell discovered his car had
been stolen from his stepfather’s garage. Several days later,
Maxwell and four other men drove to the home of Jerry Jef-
ferson, the person who they believed stole Maxwell’s car.
Although Maxwell was unarmed, three of the other four men
1
We have jurisdiction pursuant to 28 U.S.C. § 2253.
MAXWELL v. ROE 7213
were armed. After the missing car was found in Jefferson’s
garage, two of the armed men approached the house, fired
shots, and killed Jefferson.
In July 1995, Maxwell and the two shooters were charged
in Riverside County Superior Court with first degree murder.
The three defendants were tried before two separate juries:
one for Maxwell and one for the other two co-defendants. As
pretrial proceedings progressed, Maxwell’s defense counsel
expressed doubt about Maxwell’s competence to stand trial.
The trial court suspended criminal proceedings pursuant to
California Penal Code section 1368 and ordered a competence
determination. Between June and October 1996, five psychia-
trists evaluated Maxwell. Four of the five opined that Max-
well was feigning or at least grossly embellishing a psychosis
and that he was competent to stand trial. The fifth doctor filed
a report in which he concluded that Maxwell was incompetent
to stand trial. In December 1996, after considering the psychi-
atrists’ reports and opinions, Judge Christian F. Thierback of
the Riverside County Superior Court found Maxwell compe-
tent to stand trial and reinstated criminal proceedings.
In January 1998, Maxwell’s case was assigned to Judge
Patrick F. Magers for trial. As we explain in greater detail
below, during his trial, Maxwell’s behavior in and outside the
courtroom was erratic, irrational, and disruptive. Indeed,
before the jury ever entered the courtroom, Judge Magers
found Maxwell posed a danger to court staff and defense
counsel and had Maxwell removed. During trial, Maxwell’s
counsel repeatedly alerted the court that Maxwell’s condition
was worsening and that communication with Maxwell was
severely strained. The trial judge reviewed the 1996 psychiat-
ric competency evaluations and concluded that any sign that
Maxwell was mentally impaired was feigned. Approximately
half-way through the trial, Maxwell attempted suicide with a
razor blade and was sent to Riverside General Hospital for a
72-hour psychiatric hold. The court concluded that the suicide
attempt was feigned and accordingly found that Maxwell’s
7214 MAXWELL v. ROE
absence was voluntary. After two psychiatrists evaluated
Maxwell, his initial 72-hour psychiatric hold was extended to
a 14-day involuntary psychiatric hold. Nevertheless, the trial
proceeded. After a ten-day trial that spanned the month of
January, a jury that never saw Maxwell convicted him of first
degree murder. One of Maxwell’s co-defendants was acquit-
ted and the other was convicted of second degree murder. The
court sentenced Maxwell to prison for twenty-five years to
life.
Maxwell appealed. While his appeal was pending, Maxwell
also petitioned the state court of appeal for a writ of habeas
corpus. In October 1999, in an unpublished opinion, the Cali-
fornia Court of Appeal affirmed Maxwell’s conviction and
denied his petition for a writ of habeas corpus. The California
Supreme Court denied Maxwell’s petition for review without
comment. Thereafter, on two separate occasions, Maxwell
petitioned the state supreme court for habeas relief. Both
times the court denied his habeas petition without comment.
In February 2001, Maxwell filed a timely petition for a writ
of habeas corpus in federal district court. The assigned magis-
trate judge prepared a Report and Recommendation recom-
mending that the petition be denied and dismissed with
prejudice. The report found that despite Maxwell’s “certainly
disruptive and allegedly suicidal behavior, [and] extensive
pharmacopeia of prescribed antipsychotic medication,” the
evidence was “insufficient to raise a bona fide doubt that
[Maxwell], previously diagnosed as competent and malinger-
ing, had become truly incompetent;” and therefore, “the state
courts . . . neither acted in a manner contrary to federal law
as determined by the Supreme Court nor unreasonably applied
that law.” In November 2001, the district court adopted the
magistrate judge’s findings and conclusions and denied Max-
well’s petition. Maxwell appealed, arguing that he was incom-
petent to stand trial and that the trial court’s failure to conduct
a competency hearing when presented with substantial evi-
dence of incompetence violated his due process rights.
MAXWELL v. ROE 7215
In Maxwell v. Roe, 113 Fed. Appx. 213 (9th Cir. 2004), we
reviewed the district court’s November 2001 judgment.
There, we noted that
Maxwell’s behavior was erratic whether he was in
court or in jail. He was unable to control himself in
pretrial proceedings and was involuntarily commit-
ted several times while in jail awaiting trial, and
once during trial. Because he repeatedly waived his
right to be present at trial, the jury that convicted
Maxwell never actually saw him.
Maxwell, 113 Fed. Appx. at 216. We further noted that “Max-
well’s sustained erratic behavior, in light of the long interval
between his competency evaluations and his trial” presented
a relatively “compelling argument for incompetency . . . .” Id.
However, because it was not clear from the record what facts
relating to Maxwell’s competence were known by the state
trial court at the time of Maxwell’s January 1998 murder trial,
we reversed and remanded the case to the district court for an
evidentiary hearing. Id. We explained:
[W]e are not making a substantive determination on
Maxwell’s petition because it is unclear what evi-
dence was properly before the state court and the
consequent responsibility of the trial court in making
the determination of Maxwell’s competence to stand
trial. . . . In light of the trial court’s continuing
responsibility to ensure that a defendant is not tried
while incompetent, we are concerned about the fol-
lowing facts. First, . . . Maxwell was determined
numerous times to be “gravely disabled” or a danger
to himself or others as a result of mental disorder.
Second, Maxwell’s behavior at trial was erratic and
strange. And, third, during the course of trial Max-
well was involuntarily hospitalized for attempted
suicide. . . . Since we do not know how much of this
evidence was available to the trial court at the time
7216 MAXWELL v. ROE
of Maxwell’s trial, we remand to the district court to
hold an evidentiary hearing to consider the reason-
ableness of the trial court’s determination that Max-
well was competent to stand trial.
Id. at 215-16 (footnotes omitted). On remand, the assigned
magistrate judge conducted an evidentiary hearing to deter-
mine what evidence was properly before the state trial court
at the time of the January 1998 trial. Although the hearing
revealed additional information of Maxwell’s incompetence
that the trial judge knew at the time of trial, the magistrate
judge’s report again recommended denying Maxwell habeas
relief. The magistrate judge acknowledged “the dangers—
pointed out by the Ninth Circuit—of a judge reflexively rely-
ing on a prior, possibly stale determination that a criminal
defendant was competent and malingering.” However, after
weighing the evidence tending to support the trial court’s
decision against the evidence not supporting the court’s deci-
sion, the magistrate judge concluded that “the additional evi-
dence [deduced during the hearing] . . . still would have
permitted the judge reasonably, if perhaps incorrectly, to have
concluded that no bona fide doubt existed as to [Maxwell’s]
competence to stand trial.” The district court accepted the
findings and recommendation of the magistrate judge and
denied Maxwell’s habeas petition. Maxwell timely appealed,
and we reverse.
II. Standard of Review
We review de novo the district court’s denial of a petition
for a writ of habeas corpus. Musladin v. Lamarque, 555 F.3d
830, 835 (9th Cir. 2009). The district court’s findings of fact
are reviewed for clear error. McMurtrey v. Ryan, 539 F.3d
1112, 1118 (9th Cir. 2008). Maxwell filed his federal habeas
petition after April 24, 1996, and thus his petition is subject
to the Antiterrorism and Effective Death Penalty Act
(AEDPA). Under AEDPA, a writ of habeas corpus may be
granted only if the state court’s decision (1) “was contrary to,
MAXWELL v. ROE 7217
or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the
United States” or (2) “was based on an unreasonable determi-
nation of the facts in light of the evidence presented in the
State court proceeding.” 28 U.S.C. § 2254(d).
For purposes of § 2254(d)(1), clearly established federal
law consists of the holdings of the Supreme Court at the time
of the state court decision; however, “circuit court precedent
may be ‘persuasive’ in determining what law is clearly estab-
lished and whether a state court applied that law unreason-
ably.” Pinholster v. Ayers, 590 F.3d 651, 662 (9th Cir. 2009)
(en banc).
A state court’s finding that the evidence before the trial
court did not require a competency hearing under Pate is a
finding of fact. Torres v. Prunty, 223 F.3d 1103, 1105 (9th
Cir. 2000) (citing Maggio v. Fulford, 462 U.S. 111, 117
(1983) (per curiam)). Where a petitioner challenges the state
court’s findings based entirely on the state record, “we must
be particularly deferential to our state-court colleagues,” and
grant relief only if we are “convinced that an appellate panel,
applying the normal standards of appellate review, could not
reasonably conclude that the finding is supported by the
record.” Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir.
2004); see also Miller-El v. Cockerell, 537 U.S. 322, 324
(2003) (“[A] decision adjudicated on the merits in a state
court and based on a factual determination will not be over-
turned on factual grounds unless objectively unreasonable in
light of the evidence presented in the state-court proceeding
. . . .”). As we have previously pointed out, “[t]his is a daunt-
ing standard—one that will be satisfied in relatively few
cases;” however, “the standard is not impossible to meet.”
Maddox, 366 F.3d at 1000; see, e.g., Torres, 223 F.3d at 1105
(holding that the state court’s finding that the evidence did not
require a competency hearing was “unreasonable within the
meaning of § 2254(d)(2), and that [petitioner] was entitled to
a competency hearing under Pate”).
7218 MAXWELL v. ROE
Our review is of the state court’s last reasoned decision.
Barker v. Fleming, 423 F.3d 1085, 1091-92 (9th Cir. 2005)
(citing Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991)).
Here, because the California Supreme Court denied direct
review and Maxwell’s subsequent habeas petitions without
comment, we review the California Court of Appeal’s unpub-
lished opinion. See Ylst, 501 U.S. at 803.
III. Discussion
[1] Maxwell argues that at the time of his January 1998
trial he was not competent to stand trial. It is undisputed that
“the conviction of an accused person while he is legally
incompetent violates due process.” Pate, 383 U.S. at 378. To
be competent to stand trial, a defendant must have the “capac-
ity to understand the nature and object of the proceedings
against him, to consult with counsel, and to assist in preparing
his defense.” Drope, 420 U.S. at 171. Where the evidence
before the trial court raises a “bona fide doubt” as to a defen-
dant’s competence to stand trial, the judge on his own motion
must conduct a competency hearing. Pate, 383 U.S. at 385.
This responsibility continues throughout trial, Drope, 420
U.S. at 181, and we apply the same bona fide doubt standard
to determine whether an additional competency hearing was
required. See Amaya-Ruiz v. Stewart, 121 F.3d 486, 489 (9th
Cir. 1997). We have explained that under Drope and Pate, the
test for such a bona fide doubt is “whether a reasonable judge,
situated as was the trial court judge whose failure to conduct
an evidentiary hearing is being reviewed, should have experi-
enced doubt with respect to competency to stand trial.” de
Kaplany v. Enomoto, 540 F.2d 975, 983 (9th Cir. 1976) (en
banc). “[E]vidence of a defendant’s irrational behavior, his
demeanor at trial, and any prior medical opinion on compe-
tence to stand trial are all relevant in determining whether fur-
ther inquiry is required,” and “one of these factors standing
alone may, in some circumstances, be sufficient.” Drope, 420
U.S. at 180 (paraphrasing Pate, 383 U.S. at 385).
MAXWELL v. ROE 7219
Here, the trial court found and the state court of appeal
affirmed that during the course of the trial, there was insuffi-
cient evidence to justify a second hearing regarding Max-
well’s competence. We conclude, however, that in light of the
evidence before the trial court at the time of the 1998 trial, the
trial court’s finding was an unreasonable determination of the
facts and an unreasonable application of the Supreme Court’s
clearly established law in Pate and Drope.
[2] The heart of competency to stand trial is a defendant’s
“present ability to consult with his lawyer with a reasonable
degree of rational understanding” and a “factual understand-
ing of the proceedings against him.” Dusky, 362 U.S. at 402.
Here, Maxwell’s uncontrolled and disruptive behavior in the
courtroom and signs of irrationality and paranoia when it
came to his own defense should have raised a doubt about his
competency. See Drope, 420 U.S. at 180. In Torres, we
explained that “defendant’s unusual and self-defeating behav-
ior in the courtroom” was a factor that “suggested that an
inquiry into competence was required.” 223 F.3d at 1109. As
in Torres, Maxwell engaged in “peculiar behavior” and “con-
tinually disrupted the trial until he was removed from the
courtroom and locked up.” Id. at 1109-10.
Maxwell’s lack of self control was apparent even before
trial. During pretrial proceedings, Maxwell made noises and
blurted out obscenities in the courtroom. Defense counsel
advised the trial judge that Maxwell “has been, in my opinion,
getting worse, or deteriorating . . . I know that he has been in
the psychiatric unit . . . of the jail . . . . I am not sure he knows
what I am saying . . . .” The trial judge replied that he had
reviewed the medical reports submitted in connection with the
prior competency hearing, that he found nothing that would
warrant conducting a second competency hearing, and that he
concluded that Maxwell was malingering. He stated that “[a]
prior Court found the defendant to be competent, and that
decision is binding on this Court and fully supported by the
psychiatric and psychological reports lodged with this Court.”
7220 MAXWELL v. ROE
The trial judge then asked Sergeant Larry Jernegan whether
he had any concerns regarding the security of the courtroom
with Maxwell present. Sergent Jernegan informed the judge
that Maxwell had undergone numerous psychiatric evalua-
tions pursuant to California Welfare and Institutions Code
section 51502, had been prescribed psychiatric medication
which he refused to take, and had assaulted another inmate
with a knife. Sergeant Jernegan concluded that Maxwell “ei-
ther is unwilling or unable to conform to proper court behav-
ior,” and asked the trial court to order Maxwell to wear a
Remote Electronically Activated Control Technology
(“REACT”) belt. The trial court agreed that Maxwell “obvi-
ously, has been displaying disruptive behavior and he is hav-
ing a difficulty conforming himself,” and ordered that the
REACT belt be placed on Maxwell at the discretion of the
Sheriff’s Department.
2
California Welfare and Institutions Code section 5150 states:
When any person, as a result of mental disorder, is a danger to
others, or to himself or herself, or gravely disabled, a peace offi-
cer, member of the attending staff, as defined by regulation, of an
evaluation facility designated by the county, designated members
of a mobile crisis team provided by Section 5651.7, or other pro-
fessional person designated by the county may, upon probable
cause, take, or cause to be taken, the person into custody and
place him or her in a facility designated by the county and
approved by the State Department of Mental Health as a facility
for 72-hour treatment and evaluation.
Such facility shall require an application in writing stating the
circumstances under which the person’s condition was called to
the attention of the officer, member of the attending staff, or pro-
fessional person, and stating that the officer, member of the
attending staff, or professional person has probable cause to
believe that the person is, as a result of mental disorder, a danger
to others, or to himself or herself, or gravely disabled. If the prob-
able cause is based on the statement of a person other than the
officer, member of the attending staff, or professional person,
such person shall be liable in a civil action for intentionally giv-
ing a statement which he or she knows to be false.
MAXWELL v. ROE 7221
Following this colloquy, Maxwell had another physical and
verbal outburst. The courtroom deputies, with the assistance
of Maxwell’s own counsel, had to physically restrain Max-
well and forcibly put him in his seat. At that point, the trial
judge found that Maxwell “represents a threat to the staff and
possibly to [defense counsel] as well” and ordered that Max-
well be removed from the courtroom. The trial judge found
that Maxwell was malingering and therefore that Maxwell had
voluntarily absented himself from the trial. Because Max-
well’s absence was due to voluntary disruptive behavior,
under California Penal Code section 1043, the trial judge
determined he could continue the trial without Maxwell pres-
ent. See Cal. Penal Code § 1043.3
On January 8, 1998, Maxwell’s trial commenced without
him. Over the course of the next few days of trial, Maxwell’s
counsel advised the court of Maxwell’s increasingly irrational
and paranoid behavior. Specifically, defense counsel informed
the court that Maxwell had requested that his attorney turn
over evidence that would be helpful to the prosecution, asked
that his counsel be fired, and continued to refuse to attend or
even listen to the trial proceedings.
[3] In Torres, we held that the defendant was entitled to a
competency hearing where he requested that his attorney be
3
California Penal Code section 1043 states in relevant part:
(a) Except as otherwise provided in this section, the defendant in
a felony case shall be personally present at the trial.
(b) The absence of the defendant in a felony case after the trial
has commenced in his presence shall not prevent continuing the
trial to, and including, the return of the verdict in any of the fol-
lowing cases:
(1) Any case in which the defendant, after he has been warned by
the judge that he will be removed if he continues his disruptive
behavior, nevertheless insists on conducting himself in a manner
so disorderly, disruptive, and disrespectful of the court that the
trial cannot be carried on with him in the courtroom.
7222 MAXWELL v. ROE
fired, threatened to assault his attorney, insisted on being
shackled, and continually disrupted the trial until he was
removed. 223 F.3d at 1109-10 (explaining that Torres was
“no longer [ ] able to assist rationally in his defense”); see
also Deere v. Woodford, 339 F.3d 1084, 1086 (9th Cir. 2003)
(holding that an evidentiary hearing on competency was
required where defendant was not able to make logical judg-
ments about his defense). Like the defendant in Torres, Max-
well’s behavior throughout his murder trial was unreasonable
and self-defeating. Maxwell’s communication with his attor-
ney was so strained that his counsel stated he was unable to
develop a theory of the case or make an opening statement.
[4] In addition to Maxwell’s conduct in the courtroom, the
trial judge was aware of Maxwell’s mental health history and
contemporaneous behavior outside of the courtroom. This
additional information would have raised a bona fide doubt in
the mind of a reasonable trial judge about whether Maxwell
was competent to stand trial. Maxwell was on antipsychotic
drugs at the time of his trial and had a known history of men-
tal illness. The panoply of drugs he was administered during
trial, and his reported failure to take them “alone should have
raised concerns.” McMurtrey, 539 F.3d at 1125 (holding that
evidence of defendant’s behavior, medications, and memory
problems was sufficient to raise a reasonable doubt as to
defendant’s competence). Furthermore, during the trial, Max-
well attempted to kill himself. We recognize that “[not] every
suicide attempt inevitably creates a doubt concerning the
defendant’s competency.” United States v. Loyola-
Dominguez, 125 F.3d 1315, 1319 (9th Cir. 1997). Here, as in
Drope, however, the suicide attempt occurred in the midst of
trial and “did not stand alone.” Drope, 420 U.S. at 180 (inter-
nal quotation marks omitted); see id. at 181 (holding that “in
light of the defendant’s behavior including his suicide
attempt” a competency hearing was required). Maxwell’s
attempted suicide—taken in the context of his pre-trial behav-
ior, strained communication with defense counsel, mental
health history, antipsychotic medications, and subsequent psy-
MAXWELL v. ROE 7223
chiatric detentions—would have raised a doubt in a reason-
able judge. Id.; see also Loyola-Dominguez, 125 F.3d at 1319
(holding that a competency hearing was required when defen-
dant attempted suicide on the eve of trial); Moran v. Godinez,
57 F.3d 690, 695 (9th Cir. 1994) (holding that an attempted
suicide three months before trial was a significant factor war-
ranting a competency hearing).
On January 12, 1998, in conjunction with Maxwell’s sui-
cide attempt, officers from the jail admitted Maxwell to the
Riverside General Hospital psychiatric ward pursuant to their
authority under California Penal Code section 4011.6 for an
involuntary 72-hour hold pursuant to California Welfare and
Institutions Code section 5150. Without taking testimony or
reviewing Maxwell’s medical records, the trial judge opined
that Maxwell’s “conduct in jail, which caused the jail deputies
to take him to Riverside General Hospital, if that is where he
is at, I believe that [i.e., Maxwell’s suicide attempt] was a vol-
untary choice he made,” and accordingly stated that he was
“not entertaining a doubt as to his competency at this time.”
Maxwell, like the defendant in Drope who also attempted
suicide, was therefore “absent for a crucial portion of his
trial.” 420 U.S. at 180. In Drope, the Supreme Court
explained that:
Petitioner’s absence bears on the [competency] anal-
ysis in two ways: first, it was due to an act which
suggests a rather substantial degree of mental insta-
bility contemporaneous with the trial; second, as a
result of petitioner’s absence the trial judge and
defense counsel were no longer able to observe him
in the context of the trial and to gauge from his
demeanor whether he was able to cooperate with his
attorney and to understand the nature and object of
the proceedings against him.
7224 MAXWELL v. ROE
Id. at 181 (internal citation omitted). Here, Maxwell was
absent from his trial for a substantial amount of time. After a
medical evaluation conducted at Riverside General Hospital,
the medical staff extended Maxwell’s 72-hour psychiatric
hold to a 14-day psychiatric hold pursuant to California Wel-
fare and Institutions Code section 5250.4
[5] A section 5150 hold may be extended to a section 5250
hold, i.e. a 14-day hold, in the extreme instance where “[t]he
professional staff of the facility providing evaluation services
has found the person is, as a result of mental disorder . . . a
danger to others, or to himself or herself, or gravely disabled.”
Cal. Welf. & Inst. Code § 5250. The stated purpose of a sec-
tion 5250 14-day psychiatric hold is to certify the inmate for
“intensive treatment related to the mental disorder.” Id. The
psychiatric physicians who evaluated Maxwell pursuant to the
4
California Welfare and Institutions Code section 5250 states in relevant
part:
If a person is detained for 72 hours under the provisions of
Article 1 (commencing with Section 5150), or under court order
for evaluation pursuant to Article 2 (commencing with Section
5200) or Article 3 (commencing with Section 5225) and has
received an evaluation, he or she may be certified for not more
than 14 days of intensive treatment related to the mental disorder
or impairment by chronic alcoholism, under the following condi-
tions:
(a) The professional staff of the agency or facility providing
evaluation services has analyzed the person’s condition and has
found the person is, as a result of mental disorder or impairment
by chronic alcoholism, a danger to others, or to himself or her-
self, or gravely disabled.
(b) The facility providing intensive treatment is designated by
the county to provide intensive treatment, and agrees to admit the
person
....
(c) The person has been advised of the need for, but has not
been willing or able to accept, treatment on a voluntary basis.
...
MAXWELL v. ROE 7225
section 5250 hold reported that he was both “a danger to him-
self” and “gravely disabled.” Although it is not clear whether
the trial judge had copies of the psychiatric reports and evalu-
ations that the doctors prepared, he was fully aware of the 72-
hour and 14-day psychiatric holds.
During the time that Maxwell was “gravely disabled” and
committed to Riverside General Hospital’s psychiatric ward
on the involuntary 14-day psychiatric hold, his murder trial
proceeded without him with respect to all defendants and both
juries. In total, Maxwell was involuntarily committed to Riv-
erside General Hospital’s psychiatric ward for eight days, five
of which were during the trial. Over the course of January 12,
13, 14, 15 and 20, the prosecution called fifteen witnesses and
presented eyewitness testimony that related directly to Max-
well during his absence. On January 20, 1998, as trial contin-
ued, defense counsel advised the trial court that:
[Maxwell] is still at Riverside County hospital. I was
able to speak to him, although he doesn’t communi-
cate very well . . . . Apparently what it looks like is
he has been certified for a 14-day hold following a
5150, initial 48-hour detention . . . . I think where
this leaves us is that if I understand that process, two
doctors apparently now have interviewed him and
reviewed this matter and apparently have come to
this decision that he needs this, this next step of a 14-
day hold is appropriate. He is still at the hospital in
the jail section, and I don’t know what to tell the
court except this suggests—but maybe the court
would like to inquire or ask or order that the doctors
who have seen him prepare a report to the Court so
that the Court can see in greater detail what their
opinions are relating to Mr. Maxwell.
The following day, according to an entry in the record of his
doctor’s orders, Maxwell was “cleared to go to court.”5 And,
5
There is some ambiguity as to when exactly Maxwell was cleared by
the hospital to return to court. On January 20, 1998, the trial court stated
7226 MAXWELL v. ROE
on January 21, 1998, Maxwell returned to the courtroom. At
that time, the court again asked Maxwell if he was willing to
behave and conform his behavior to what would be expected
in the courtroom and Maxwell replied he would not. As a
result, he was once again removed from the courtroom.
[6] The initial section 5150 hold, standing alone, put the
court on notice that a qualified professional had certified that
there was “probable cause to believe” that Maxwell was “as
a result of mental disorder, a danger to others, or to himself
or herself, or gravely disabled.” Cal. Welf. & Inst. Code
§ 5150. The section 5250 hold put the court on notice that
medical professionals had determined that Maxwell in fact
had such a mental disorder that made him “a danger to others,
or to himself or herself, or gravely disabled.” Cal. Welf. &
Inst. Code § 5250(a). Here, as in Drope, “in light of the evi-
dence of petitioner’s behavior including his suicide attempt,
and there being no opportunity without his presence to evalu-
ate that bearing in fact, the correct course was to suspend the
trial until such an evaluation could be made.” 420 U.S. at 181.
No reasonable judge, situated as the state trial judge was here,
could have proceeded with the trial without doubting Max-
well’s competency to stand trial.
[7] Had the judge conducted a hearing at this point, he
would have discovered further information suggesting Max-
well’s incompetence. For example, had the judge simply
obtained copies of the January 15, 1998, “Notice of Certifica-
tion,” prepared in conjunction with the section 5250 hold, he
that Maxwell had “been free to come to court for the last week,” but the
only evidence in the record pertaining to Maxwell’s release date is a doc-
tor’s note clearing Maxwell for court on the day he first returned, January
21, 1998. Regardless of when the hospital cleared Maxwell to return to
court, the fact that Maxwell subsequently was cleared for court does not
obviate the trial court’s obligation to conduct a competency determination
and comply with Pate and Drope following his successive psychiatric
holds.
MAXWELL v. ROE 7227
would have learned that, at the time of trial, two separate state
psychologists had found Maxwell to be “actively psychotic”
and that one had reported that:
Patient [Maxwell] is in a safety cell on suicide
watch. Patient has a long history of mental illness.
Presently confused, disoriented, talking to himself,
agitated, unpredictable and impulsive. He was found
with a razor blade and a superficial laceration on his
left wrist, and has smeared blood. Patient is actively
hallucinating. He refused to communicate, paranoid
and suspicious. In safety cell he lies naked and on
the floor. Agitated and unpredictable with poor eye
contact. He refused medication and refused to eat.
He has suicidal intentions, and says “I will find a
way.”
The second psychologist similarly reported that:
[Maxwell] is unable to function at this time because
of his poor mental state and [he] is at this time
unable to provide care for himself because of his
acute psychotic symptoms . . . . He is talking to him-
self. He is evasive and uncooperative. Thought pro-
cesses are loose and tangential . . . . Reality
orientation is poor. He is not oriented to time or
place. Insight and judgment are poor. . . . The patient
obviously is in need of medications because of his
acute psychotic symptoms . . . .
A more complete inquiry by the state court would have also
revealed Maxwell’s Riverside General Hospital chart.
According to the chart, on January 15, 1998—during the psy-
chiatric hold and his murder trial—Maxwell was restrained in
four-point leather restraints and involuntary administered
heavy doses of the antipsychotic drug Haldol for “head bang-
ing and violent behavior.” The trial judge’s failure to make a
more complete inquiry undermines the state court fact-finding
7228 MAXWELL v. ROE
process, and the inadequacy of the fact-finding process under-
mines the facts themselves. See Torres, 223 F.3d at 1109 (not-
ing that “the factfinding procedure by the judge was clearly
inadequate” where defense counsel alerted the judge to com-
petency concerns and the judge concluded without further
inquiry that the defendant was competent); Maddox, 366 F.3d
at 1005 (holding that the “failure to consider, or even
acknowledge, [petitioner’s] highly probative [evidence] casts
serious doubt on the state-court fact-finding process”). In
Dyas v. Poole, for example, we held that a state courts’ find-
ing of fact “was unreasonable in the absence of any inquiry
to establish the facts.” 317 F.3d 934, 936 (9th Cir. 2003).
Here, the trial court similarly reached the factual conclusion
that Maxwell’s suicide attempt was feigned and that he was
malingering without inquiry.
[8] Nonetheless—even without taking into account the
graphic details reported in the section 5250 certification
reports and medical chart—the successive involuntary holds
by themselves, and in the context of the other evidence of
incompetence, would have raised a doubt in a reasonable
judge.
The California Court of Appeal disagreed. The court of
appeal affirmed the trial court’s finding, relying primarily on
the following circumstances: (1) Maxwell’s defense counsel
did not declare that he had a doubt about Maxwell’s compe-
tency; (2) the court’s finding that Maxwell merely feigned his
inability to control his conduct during the trial; and (3) the
trial judge’s reliance on a competency assessment conducted
thirteen months before the start of trial, which found that
Maxwell was feigning mental illness and embellishing a psy-
chosis. We address each in turn.
[9] First, the court of appeal inappropriately attributes
great weight to the fact that Maxwell’s counsel did not request
a competency hearing. As Pate and Drope make clear,
“[w]here the evidence raises a ‘bona fide doubt’ as to a defen-
MAXWELL v. ROE 7229
dant’s competence to stand trial,” a trial judge has an indepen-
dent duty to conduct a competency hearing “on his own
motion.” Pate, 383 U.S. at 385 (emphasis added); see also
Drope, 420 U.S. at 181 (explaining that “a trial court must
always be alert to circumstances suggesting . . . [a defendant’s
lack of] competence to stand trial” (emphasis added)). Fur-
thermore, as Pate explains, it is contradictory to argue that a
potentially incompetent defendant can knowingly waive “his
right to have the court determine his capacity to stand trial.”
383 U.S. at 384. Finally, although we acknowledge that “de-
fense counsel will often have the best-informed view of the
defendant’s ability to participate in his defense,” Medina v.
California, 505 U.S. 437, 450 (1992), we have recognized
that “counsel is not a trained mental health professional and
his failure to raise petitioner’s competence does not establish
that petitioner was competent.” Odle v. Woodford, 238 F.3d
1084, 1089 (9th Cir. 2001).
Here, defense counsel did not formally request a compe-
tency hearing, but he did on numerous occasions express con-
cern that Maxwell was unable to aid in his own defense.
Maxwell’s counsel informed the court that he was concerned
about Maxwell’s ability to stand trial because Maxwell was
deteriorating, not communicating with defense counsel, and
exhibiting paranoid behavior. Maxwell’s counsel alerted the
court to Maxwell’s history of mental health problems and use
of psychiatric drugs. And, after Maxwell was placed on a 14-
day involuntary psychiatric hold, defense counsel asked the
trial court whether the 14-day hold affected the court’s deter-
mination that Maxwell was voluntarily absent from his own
trial and recommended that the court inquire and obtain a
report from the doctors whose evaluations triggered the hold.
In sum, although Maxwell’s counsel did not formally request
a competency hearing, defense counsel clearly expressed con-
cern about Maxwell’s competence.
[10] Second, the trial court found that Maxwell was malin-
gering and that his “cursing and disruptive conduct” in the
7230 MAXWELL v. ROE
courtroom was voluntary. The state court of appeal upheld the
finding and concluded that Maxwell’s disruptive behavior
during trial amounted to no more than “affirmative efforts to
appear psychotic” and an “unwillingness” to participate in his
defense. Evidence of a defendant’s demeanor at trial is one of
the factors, under Drope, that a court may consider in deter-
mining whether a competency hearing is required. 420 U.S.
at 180; see Torres, 223 F.3d at 110 (“Although ‘bizarre
actions’ are not necessarily sufficient evidence to compel a
Pate hearing, they are a factor to be considered.”). In Torres,
we held that a competency hearing was required where defen-
dant believed his attorney was part of a conspiracy against
him, threatened to assault his attorney, insisted on being hand-
cuffed, and continually disrupted the trial until he was
removed from the courtroom. 223 F.3d at 1109-10. Here,
Maxwell’s behavior was equally bizarre, irrational, and dis-
ruptive. As we detailed above, Maxwell mumbled and
shouted obscenities during the pre-trial conference, he had to
be physically restrained by his own counsel, he requested that
his counsel be fired, his communication with his counsel was
so strained that defense counsel stated that he was unable to
develop a theory of the case or prepare an opening statement,
and Maxwell asked that his attorney hand over evidence help-
ful to the prosecution. Also, as in Torres, Maxwell was ulti-
mately removed from the courtroom due to his inability to
control himself. In sum, contrary to the trial court’s finding,
Maxwell’s unusual and self-defeating behavior in the court-
room suggested that an inquiry into competence was required.
[11] Third and finally, it is undisputed that a “prior medi-
cal opinion on competence to stand trial” is “relevant in deter-
mining whether a further inquiry [into competence] is
required.” Drope, 420 U.S. at 180. Here, however, there was
substantial evidence that Maxwell’s mental condition had sig-
nificantly deteriorated since the initial pretrial 1996 compe-
tency determination. “Even when a defendant is competent at
the commencement of his trial, a trial court must always be
alert to circumstances suggesting a change that would render
MAXWELL v. ROE 7231
the accused unable to meet the standards of competence to
stand trial.” Id. at 181. For example, in Torres, we held that,
despite a determination prior to trial that the defendant was
competent, in the face of significant indicia of incompetence
during trial, the “previous conclusion that [defendant] was
competent to stand trial [did] not obviate the need for a hear-
ing.” 223 F.3d at 1110. By the time of Maxwell’s murder
trial, the December 1996 competency determination was thir-
teen months old. That determination was itself based on aging
psychiatric evaluations that were, by the time of Maxwell’s
trial, eighteen months old. After so much time had passed, the
trial court would have been unreasonable in relying solely on
a stale competency determination in the face of contradictory
evidence. See de Kaplany, 540 F.2d at 980-81 (stating that
once there is substantial new evidence of incompetency, a
bona fide doubt is raised that “cannot be dispelled by resort
to [pre-existing] conflicting evidence”). Furthermore, we have
repeatedly acknowledged that a defendant’s competency can
change within a short period of time. See, e.g., Miles v.
Stainer, 108 F.3d 1109, 1113 (9th Cir. 1997) (recognizing a
change in competency within one month); Chavez v. United
States, 656 F.2d 512, 518 (9th Cir. 1981) (noting that old psy-
chiatric reports may lose their probative value over time,
especially if subsequent facts and circumstances contradict
their conclusions).
Finally, as in Drope, the eighteen month old psychiatric
assessments “did not stand alone.” 420 U.S. at 180 (internal
quotation marks omitted). There was overwhelming evidence
that regardless of the prior competency determination, Max-
well was incompetent at the time of his 1998 murder trial.
Maxwell was involuntarily committed pursuant to 72-hour
and 14-day holds at the Riverside General Hospital psychiat-
ric unit during his trial; attempted suicide during his trial; had
a known history of mental illness; was prescribed antipsycho-
tic medications, which he frequently refused, during his trial;
had numerous outbursts that resulted in his removal from the
courtroom; and exhibited paranoid and psychotic behavior
7232 MAXWELL v. ROE
that impaired his communication with his attorney and rea-
soning regarding his defense. All of these circumstances were
known to the trial judge. On this record, the court’s determi-
nation that there was no need for a new competency hearing
was an unreasonable factual determination and an unreason-
able application of Drope and Pate.
[12] Having considered all of the evidence before the state
court, we conclude that Maxwell’s inability to control himself
in court, his suicide attempt, his history of mental illness, his
impaired communication with defense counsel, and his 14-
day involuntary psychiatric hold during his trial would have
raised a bona fide doubt in a reasonable trial judge that he was
no longer able to “consult with his lawyer with a reasonable
degree of rational understanding.” Dusky, 362 U.S. at 402
(internal quotation marks omitted). The state trial court’s fail-
ure to declare a bona fide doubt as to Maxwell’s competency
to stand trial and its failure to conduct sua sponte a compe-
tency hearing violated Maxwell’s due process rights, and the
state appellate court’s decision to affirm the state trial court’s
finding that Maxwell was not entitled to a competency hear-
ing was an unreasonable determination of the facts in light of
the evidence known by the trial judge, 28 U.S.C.
§ 2254(d)(2), and an unreasonable application of federal law
as established by Drope and Pate, 28 U.S.C. § 2254(d)(1).
IV. Remedy
[13] This court “disfavor[s] retrospective determinations of
incompetence,” see Williams v. Woodford, 384 F.3d 567, 608
(9th Cir. 2004), and they are reserved for those cases where
it is possible to “conduct a meaningful hearing to evaluate
retrospectively the competency of the defendant.” Moran v.
Godinez, 57 F.3d 690, 696 (9th Cir. 1995), overruled on other
grounds by Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003);
see Drope, 420 U.S. at 183 (holding that “[g]iven the inherent
difficulties of such a nunc pro tunc determination under the
most favorable circumstances,” a retrospective competency
MAXWELL v. ROE 7233
hearing six years after the trial was not possible). In determin-
ing whether such a hearing is warranted, we evaluate such
factors as the passage of time and the availability of contem-
poraneous medical reports. Moran, 57 F.3d at 696; see also
McMurtrey, 539 F.3d at 1131-32.
In Pate, for example, the Court explained the difficulties in
conducting a retrospective competency hearing in that case.
383 U.S. at 387. In particular, as we have noted, the Court
reasoned in Pate
that the inability of the jury to observe the demeanor
of the accused, the fact that expert testimony would
have had to have been based solely on the printed
record, and the six-year lapse between the time of
trial and the proposed post-conviction hearing com-
bined to compromise such a hearing beyond redemp-
tion.
de Kaplany, 540 F.2d at 986 n.11 (discussing Pate). Similarly,
in McMurtrey we concluded “that because of the thirteen-year
delay, the lack of contemporaneous medical opinions, and the
lack of medical records, the state trial court could not in 1994
meaningfully determine whether [the defendant] had been
competent at trial in 1981.” 539 F.3d at 1132.
[14] Here, as in Pate and McMurtrey, substantial time has
elapsed. Maxwell’s conviction is twelve years old. Moreover,
although some records were prepared in connection with the
holds under sections 5150 and 5250, the contemporaneous
medical reports are, for the most part, short form letters. A
meaningful retrospective competency determination, given
the twelve-year delay and sparse medical record, is not possi-
ble. See Pate, 383 U.S. at 387; McMurtrey, 538 F.3d at 1132.
Because we cannot conclude that a retrospective compe-
tency hearing would be possible here, we remand with direc-
7234 MAXWELL v. ROE
tions to grant Maxwell a writ of habeas corpus. The state
remains free to retry Maxwell.
V. Conclusion
[15] We conclude that the state trial and appellate courts
unreasonably determined that Maxwell was not entitled to a
competency hearing under Pate. We therefore reverse the dis-
trict court’s judgment and remand with directions to grant a
writ of habeas corpus directing the state to provide Maxwell
with a new trial in a reasonable amount of time or release
him.
REVERSED AND REMANDED.