FILED
NOT FOR PUBLICATION MAR 17 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
RICHARD LEE GRUBER, No. 10-15539
Petitioner - Appellant, D.C. No. 3:06-cv-00655-ECR-
RAM
v.
JACK PALMER; ATTORNEY MEMORANDUM *
GENERAL OF THE STATE OF
NEVADA,
Respondents - Appellees.
Appeal from the United States District Court
for the District of Nevada
Edward C. Reed, Senior District Judge, Presiding
Submitted March 15, 2011 **
San Francisco, California
Before: WALLACE, FERNANDEZ, and CLIFTON, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Petitioner-Appellant Richard Lee Gruber, a Nevada state prisoner, appeals
from the district court’s denial of his petition for a writ of habeas corpus. We have
jurisdiction pursuant to 28 U.S.C. § 2253. We agree with the analysis of the
district court and affirm.
Because Gruber points to no clearly established Supreme Court law that
requires a trial court judge to inquire about a defendant’s mental competency when
presented with the information available to the trial court here and when counsel
makes no such request, Gruber’s guilty-plea argument must be rejected.
Furthermore, in light of the plea colloquy, the Nevada Supreme Court did not err in
holding that Gruber had a “sufficient present ability to consult with his lawyer with
a reasonable degree of rational understanding” and “a rational as well as factual
understanding of the proceedings against him.” Dusky v. United States, 362 U.S.
402, 402 (1960) (per curiam); see also Bills v. Clark, 628 F.3d 1092, 1099 (9th Cir.
2010 (discussing Dusky standard generally and as applied to pretrial proceedings);
Stanley v. Cullen, __ F.3d __, 2011 WL 285218, at *4–6 (9th Cir. Jan. 31, 2011).
Even if Gruber’s medical records had been evaluated during the hearing, the
records would not support his claim that he lacked a reasonable degree of rational
understanding. In one psychiatric evaluation, the physician noted that Gruber “is
able to understand the likely outcome of his behavior.” The physician also
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considered that the “inconsistencies in the presentation” might “lead somebody to
believe that [Gruber] may be malingering.”
Gruber argues that his trial counsel was ineffective because she did not
investigate Gruber’s mental health history and request a competency evaluation.
“For purposes of § 2254(d)(1), an unreasonable application of federal law is
different from an incorrect application of federal law. A state court must be
granted a deference and latitude that are not in operation when the case involves
review under the Strickland [v. Washington, 466 U.S. 668 (1984)] standard itself.”
Harrington v. Richter, 131 S. Ct. 770, 785 (2011) (internal citation and quotation
marks omitted). Because there was evidence that Gruber’s counsel was acting
reasonably in believing that Gruber was competent and there is not a substantial
likelihood of a different result had Gruber’s counsel sought a competency hearing,
the Nevada Supreme Court reasonably applied Strickland in rejecting Gruber’s
argument. See id. at 787–88, 792.
Gruber also argues that his trial counsel was ineffective because she failed to
move to suppress his confession. Because there is neither any evidence that his
counsel would have been successful in suppressing the confession, nor is there
evidence that suppressing the confession would have had any effect on the result,
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the Nevada Supreme Court reasonably applied Strickland in rejecting Gruber’s
argument. See id. at 787–88.
Gruber next argues that his trial counsel was ineffective because she advised
Gruber to plead guilty to a time-barred charge. Because pleading guilty to the
time-barred charge was in lieu of Gruber being charged with numerous other non-
time-barred charges, the Nevada Supreme Court reasonably applied Strickland in
rejecting Gruber’s argument. See id.
Gruber further argues that his trial counsel was ineffective because she failed
to present mitigating evidence related to Gruber’s mental health at sentencing.
Because there is no indication that presenting such evidence would have made a
difference in Gruber’s sentence, the Nevada Supreme Court reasonably applied
Strickland in rejecting Gruber’s argument. See id.
AFFIRMED.
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