Eric Clark v. James Arnold

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

ERIC MICHAEL CLARK, No. 12-15601
Petitioner-Appellant,
D.C. No.
v. 3:09-cv-08006-
JAT
JAMES ARNOLD; TERRY L.
GODDARD; CHARLES L. RYAN,
Respondents-Appellees. OPINION

Appeal from the United States District Court
for the District of Arizona
James A. Teilborg, Senior District Judge, Presiding

Argued and Submitted
January 13, 2014—San Francisco, California

Filed October 8, 2014

Before: J. Clifford Wallace and Jay S. Bybee, Circuit
Judges, and James C. Mahan, District Judge.*

Opinion by Judge Bybee

*
The Honorable James C. Mahan, District Judge for the U.S. District
Court for the District of Nevada, sitting by designation.
2 CLARK V. ARNOLD

SUMMARY**

Habeas Corpus

The panel affirmed the district court’s judgment denying
Eric Michael Clark’s 28 U.S.C. § 2254 habeas corpus petition
challenging a conviction of murdering a law enforcement
officer in the line of duty.

Clark argued his trial counsel was ineffective under
Strickland v. Washington for not preserving “observation
evidence” that could negate the mens rea element of the crime
and for failing to request a reevaluation of his competency
during trial. He also argued that his appellate counsel was
ineffective for failing to raise those issues on appeal.

In light of the “doubly deferential” standard afforded to
Strickland claims brought under § 2254, the panel concluded
that it was not contrary to, nor an unreasonable application of,
Strickland for the state court to determine that Clark’s trial
counsel did not provide ineffective assistance by failing to
preserve explicitly the issue of observation evidence or by
failing to request a reevaluation of Clark’s competency. The
panel held that Clark’s claim of ineffective appellate counsel
is procedurally defaulted.

**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 CLARK V. ARNOLD 3

COUNSEL

Carla G. Ryan (argued), Law Office of Carla G. Ryan,
Tucson, Arizona, for Petitioner-Appellant.

Michael T. O’Toole (argued), Assistant Attorney General;
Thomas C. Horne, Attorney General; Kent E. Cattani,
Division Chief Counsel; Joseph T. Maziarz, Section Chief
Counsel, Phoenix, Arizona, for Respondents-Appellees.

OPINION

BYBEE, Circuit Judge:

Arizona state prisoner Eric Michael Clark appeals from
the district court’s denial of his 28 U.S.C. § 2254 habeas
corpus petition challenging his conviction of murdering a law
enforcement officer in the line of duty. Clark argues his trial
counsel was ineffective under Strickland v. Washington,
466 U.S. 668 (1984), for not preserving “observation
evidence” that could negate the mens rea element of the crime
and for failing to request a reevaluation of his competency
during trial. He also argues that his appellate counsel was
ineffective for failing to raise those issues on appeal.

In light of the “doubly deferential” standard afforded to
Strickland claims brought under § 2254, Knowles v.
Mirzayance, 556 U.S. 111, 123 (2009), we conclude that it
was not contrary to, nor an unreasonable application of,
Strickland for the state court to determine that Clark’s trial
counsel did not provide ineffective assistance by failing to
preserve explicitly the issue of observation evidence or by
failing to request a reevaluation of Clark’s competency. We
4 CLARK V. ARNOLD

hold that Clark’s claim of ineffective appellate counsel is
procedurally defaulted. Accordingly, we affirm the judgment
of the district court denying Clark’s habeas petition.

I. BACKGROUND

A. Offense and Trial

The instant appeal is the latest chapter in this case’s long
and complex history. The facts of the underlying crime are
straightforward. As described by the U.S. Supreme Court in
Clark’s direct appeal:

In the early hours of June 21, 2000, Officer
Jeffrey Moritz of the Flagstaff Police
responded in uniform to complaints that a
pickup truck with loud music blaring was
circling a residential block. When he located
the truck, the officer turned on the emergency
lights and siren of his marked patrol car,
which prompted petitioner Eric Clark, the
truck’s driver (then 17), to pull over. Officer
Moritz got out of the patrol car and told Clark
to stay where he was. Less than a minute
later, Clark shot the officer, who died soon
after but not before calling the police
dispatcher for help. Clark ran away on foot
but was arrested later that day with
gunpowder residue on his hands; the gun that
killed the officer was found nearby, stuffed
into a knit cap.

Clark v. Arizona, 548 U.S. 735, 743 (2006).
 CLARK V. ARNOLD 5

Clark was charged with first-degree murder for
intentionally or knowingly killing a law enforcement officer
in the line of duty under Ariz. Rev. Stat. Ann. § 13-
1105(A)(3).1 Independent psychological experts appointed
by the court deemed him incompetent to stand trial. The
parties subsequently stipulated to Clark’s incompetence.

1. Competency

Clark underwent treatment to restore competency at a
state hospital beginning in April 2001. In October 2001,
Arizona State Hospital evaluator Edward Jasinski, Ph.D.,
concluded “to a reasonable degree of psychological certainty
that[] Mr. Clark is competent to stand trial.” He deemed any
lack of cooperation between Clark and his evaluators
“volitional.” Court-appointed doctors came to similar
conclusions. M.B. Kassell, M.D., wrote in November 2001
that Clark was “at this time . . . quite [c]ompetent.” John P.
DiBacco, Ph.D., wrote that at that time Clark was “competent
to stand trial and, more specifically, can assist his attorney in
his own defense as well as understand the process to the
extent necessary.”

Competency hearings followed in the summer of 2002.
Drs. DiBacco, Kassell, and Jasinski testified that Clark was
competent and that any failure to cooperate with his attorney
was volitional. Clark’s expert, Susan Parrish, Ph.D.,
disagreed with this finding, writing that Clark “can’t fully
appreciate the situation,” and that any failure to work with his

1
Section 13–1105(A)(3) provides that “[a] person commits first degree
murder if . . . [i]ntending or knowing that the person’s conduct will cause
death to a law enforcement officer, the person causes the death of a law
enforcement officer who is in the line of duty.”
6 CLARK V. ARNOLD

lawyers “is not volitional.” The court considered all the
evidence and ordered Clark readmitted to the hospital in
September 2002 and ordered periodic reports from his
doctors. Drs. Kassell and Jasinski submitted further reports
attesting to Clark’s competence.2 Barry Morenz, M.D.,
another expert retained by Clark, provided an assessment in
April 2003, concluding that Clark “does have some cognitive
awareness of his current legal predicament” and he “could be
considered marginally competent to stand trial but his
competency would have to be considered qualified.” He
noted that injections of an antipsychotic drug called Haldol
“are probably helping him, at least to some degree . . . ,” but
it was “not clear that Mr. Clark can rationally assist his
attorney in his own defense since Mr. Clark has yet to have
a rational conversation with his attorney about his case. To
conclude that Mr. Clark is clearly competent would imply
that Mr. Clark is malingering,” which Dr. Morenz called
“possible” but “not likely.”

In May 2003, after reviewing “the records submitted by
Dr. Kassel, Dr. DiBacco, Dr. Morenz, and Dr. Jasinski and
all other information,” the court concluded that Clark was
“competent to stand [t]rial, understands the proceedings, and
if he chooses, can assist his attorney in his defense. The
Defendant’s status, at this time, is one of volition, as opposed

2
Jasinski noted that Clark “ask[ed] questions about civil commitments,
GEI [guilty except for insanity], and prison sentences” and “wanted to
know where you would have to serve the longest sentence and if you were
under a civil commitment, would your charges be dropped.” Clark later
told Jasinski: “I’m charged with murdering a police officer, but I am
innocent.” Jasinski wrote Clark “does have a good understanding of his
legal situation, does have an awareness of various legal options in this
case, and in fact is weighting various options.”
 CLARK V. ARNOLD 7

to any inability.” The bench trial began on August 5, 2003,
and lasted eleven days.

On the seventh day of the trial, Clark’s attorney, Byron
Middlebrook, told the judge that he and co-counsel David
Goldberg “have some concerns that [Clark] may not be
following what’s occurring in court” and said that there was
“some concern about making sure that [he] gets medicated
and stuff. And I will be the first to admit that we have kind
of let that drop off. . . . [W]e probably need to get him
medicated. We’re getting a little concerned that he’s not
following.” The court said it would contact the jail to make
sure it was aware of a court order requiring that Clark be
given his medication, specifically Haldol, even involuntarily.
This colloquy is the extent of any concerns raised during trial
about Clark’s mental health.

2. The Insanity Defense Under Arizona Law

Arizona’s traditional approach to the insanity defense was
adapted from M’Naghten’s Case, (1843) 8 Eng. Rep. 718
(Q.B.), the single most influential articulation of the common
law insanity defense.3 In that case, in 1843, Daniel

3
See Renée Melançon, Note, Arizona’s Insane Response to Insanity,
40 Ariz. L. Rev. 287, 294 (1998) [hereinafter Response to Insanity]
(“Arizona’s original insanity defense statute was basically the M’Naghten
test.”); see also Durham v. United States, 214 F.2d 862, 869 (D.C. Cir.
1954), abrogated on other grounds by United States v. Brawner, 471 F.2d
969 (D.C. Cir. 1972) (“[T]he House of Lords in the famous M’Naghten
case restated what had become the accepted ‘right-wrong’ test in a form
which has since been followed, not only in England but in most American
jurisdictions as an exclusive test of criminal responsibility.”) (footnotes
omitted); Wayne R. LaFave, 1 Subst. Crim. L. § 7.2 (2d ed.) (“In a
majority of the jurisdictions in this country, what is most often referred to
8 CLARK V. ARNOLD

M’Naghten shot and killed Edward Drummond, the secretary
to Prime Minister Sir Robert Peel, believing that Drummond
was Peel. See id. at 719; Fradella, From Insanity, at 15.
M’Naghten was under the delusion that Peel was persecuting
him, and he was acquitted of murder on the ground of
insanity. Subsequently, the House of Lords put several
questions relating to insanity to English judges. See
M’Naghten, 8 Eng. Rep. at 720. The judges’ answers became
known as the M’Naghten Rules, the most important of which
provided:

[T]o establish a defence on the ground of
insanity, it must be clearly proved that, at the
time of the committing of the act, the party
accused was labouring under such a defect of
reason, from disease of the mind, as not to
know the nature and quality of the act he was
doing; or, if he did know it, that he did not
know he was doing what was wrong.

Id. at 722.

as the M’Naghten rule has long been accepted as the test to be applied for
the defense of insanity.”); Henry F. Fradella, From Insanity to Beyond
Diminished Capacity: Mental Illness and Criminal Excuse in the
Post-Clark Era, 18 U. Fla. J.L. & Pub. Pol’y 7, 15 (2007) [hereinafter
From Insanity] (“In 1843, the M’Naghten case set forth a legal standard
for insanity that many U.S. jurisdictions still use today.”) (footnotes
omitted); cf. Clark, 548 U.S. at 749 (“Even a cursory examination of the
traditional Anglo-American approaches to insanity reveals significant
differences among them, with four traditional strains variously combined
to yield a diversity of American standards[,]” although the first two strains
“emanate from the alternatives stated in the M’Naghten rule.”).
 CLARK V. ARNOLD 9

M’Naghten essentially established a two pronged insanity
defense. The first, the cognitive incapacity prong, asks
whether a mental defect left a defendant at the time of the act
unable to understand what he was doing—to form the
requisite mens rea of the crime charged. See Clark, 548 U.S.
at 747; Fradella, From Insanity, at 18 (“The cognitive
incapacity part of the test relieves the defendant of liability
when the defendant is incapable of forming mens rea.”). If,
for example, “in crushing the skull of a human being with an
iron bar, [a person] believed that he was smashing a glass
jar,” he would be deemed insane under the cognitive
incapacity prong of M’Naghten. 2 Wharton’s Crim. L. § 101
(15th ed.); see also Fradella, From Insanity, at 18 (“For
example, if a man strangled another person believing that he
was squeezing the juice out of a lemon, he did not understand
the nature and quality of his act.”).

The second prong, called the moral incapacity prong, asks
whether a mental disease or defect left the defendant unable
to appreciate the wrongfulness of his act. See Clark, 548 U.S.
at 747. In that circumstance, the defendant “knew what he
was doing; he knew that he was crushing the skull of a human
being with an iron bar. However, because of mental disease,
he did not know that what he was doing was wrong. He
believed, for example, that he was carrying out a command
from God.” 2 Wharton’s Crim. L. § 101. In that example,
the defendant would have satisfied the cognitive capacity
prong—because he had the mens rea for he knew he was
crushing a human skull with intent to kill—but he could be
adjudged insane because he did not think his doing so was
wrong given the context. See Fradella, From Insanity, at 18
(describing this prong of M’Naghten as “usually at the crux
of an insanity defense”).
10 CLARK V. ARNOLD

Until the early 1990s, Arizona “uniformly adhered” to
“the Rule of M’Naghten’s Case as the test for criminal
insanity.” State v. Schantz, 403 P.2d 521, 525 (1965) (citing
cases from 1921). When Arizona “first codified an insanity
rule [in 1978] it adopted the full M’Naghten statement.”
Clark, 548 U.S. at 747. The 1978 law read in relevant part:

A person is not responsible for criminal
conduct if at the time of such conduct the
person was suffering from such a mental
disease or defect as not to know the nature
and quality of the act or, if such person did
know, that such person did not know that
what he was doing was wrong.

Id. at 747–48 (quoting Ariz. Rev. Stat. Ann. § 13–502 (West
1978)).

But in 1993, after a defendant in a highly publicized
murder trial was found not guilty by reason of insanity and
was later released, Arizona’s legislature changed the insanity
defense and adopted a much more restrictive version of the
test. Melançon, Response to Insanity, at 290. The new law
did not include a “cognitive incapacity” provision; it left only
the second prong of the M’Naghten test, the so-called moral
incapacity test:

A person may be found guilty except insane if
at the time of the commission of the criminal
act the person was afflicted with a mental
disease or defect of such severity that the
person did not know the criminal act was
wrong. A mental disease or defect
constituting legal insanity is an affirmative
 CLARK V. ARNOLD 11

defense. Mental disease or defect does not
include disorders that result from acute
voluntary intoxication or withdrawal from
alcohol or drugs, character defects,
psychosexual disorders or impulse control
disorders. Conditions that do not constitute
legal insanity include but are not limited to
momentary, temporary conditions arising
from the pressure of the circumstances, moral
decadence, depravity or passion growing out
of anger, jealousy, revenge, hatred or other
motives in a person who does not suffer from
a mental disease or defect or an abnormality
that is manifested only by criminal conduct.

Ariz. Rev. Stat. Ann. § 13-502(A).

In State v. Mott, 931 P.2d 1046 (Ariz. 1997), the Arizona
Supreme Court addressed what kind of evidence could be
admitted at trial to negate specific intent under the new law.
Mott concerned expert evidence on battered woman
syndrome (“BWS”). 931 P.2d at 1049. The defendant was
convicted of two counts of child abuse and first-degree
murder and sought to introduce testimony from an expert on
BWS to show that the defendant’s mental capacity negated
the specific intent necessary to “knowingly or intentionally”
commit child abuse. Id. The trial court denied the admission
of such evidence, but the appellate court reversed. The
Arizona Supreme Court reversed again. Id. Reviewing the
Arizona insanity defense statute, the court concluded that the
legislature’s rejection of a diminished capacity defense (the
cognitive prong) was also a bar on “evidence of a defendant’s
mental disorder short of insanity either as an affirmative
12 CLARK V. ARNOLD

defense or to negate the mens rea element of a crime.” Id. at
1051.

The BWS expert’s “testimony was offered to demonstrate
that defendant’s mental incapacity negated specific intent.”
Id. at 1054. The court held it was not admissible for that
purpose, and “did not meet the standards of the one test for
criminal responsibility—the M’Naghten test—that Arizona
does follow”—the moral incapacity prong of the test. Id. at
1054–55. “Furthermore, if [the court] adopted the
defendant’s position and allowed expert testimony such as
this to negate specific intent, the result would be . . . to
compel juries to ‘release[ ] upon society many dangerous
criminals who obviously should be placed under
confinement.’” Id. at 1055 (alteration in original) (citation
omitted).4

3. The State Trial

Clark was tried without a jury. The revised version of the
insanity defense, as interpreted by Mott, was the operative
law during Clark’s bench trial. After the state presented its
case, Clark moved for a directed judgment of acquittal
claiming that there was insufficient evidence that he knew the

4
Mott later filed a habeas petition that the Arizona district court granted
in an unpublished opinion. Mott v. Stewart, 98-CV-239, 2002 WL
31017646 (D. Ariz. Aug. 30, 2002) (unpublished). The court concluded
that “[t]he exclusion of evidence of mental disease or defect offered to
negate the specific intent element of an offense or to establish an
alternative explanation for a defendant’s conduct is disproportionate to the
purposes stated by the court that it was designed to serve.” Id. at *6.
Clark’s trial court did not rely on Mott’s habeas proceeding when it
construed Mott, concluding that an unpublished federal opinion was not
“the law of the land of the State of Arizona.”
 CLARK V. ARNOLD 13

officer whom he shot “was actually a police officer and that
he was actually intending to kill a police officer,” and not an
alien. Clark had told others that he believed that aliens had
invaded Flagstaff and were impersonating government
agents. In response, the state introduced evidence that the
officer displayed all the indicia of the police: he drove a
squad car, turned on his lights and sirens, and wore a uniform,
and that Clark pulled over as ordered. The court denied the
motion.

During trial, Clark claimed mental illness and sought to
introduce evidence of such illness for two purposes. First,
Clark raised the affirmative defense of insanity under Arizona
law—that “at the time of the commission of the criminal act
[he] was afflicted with a mental disease or defect of such
severity that [he] did not know the criminal act was wrong.”
Ariz. Rev. Stat. Ann. § 13–502(A). Second, he sought to
rebut the prosecution’s evidence of the requisite mens rea
under the first-degree murder statute, that he had acted
intentionally or knowingly to kill a law enforcement officer.
See Clark, 548 U.S. at 744.

On the second ground, the trial court interpreted Mott as
barring evidence of insanity to dispute mens rea, but
permitted the evidence to be admitted. The court stated that
“after reading all [of] the Mott case,” and recognizing that
“all” of the defense counsel’s evidence “has to do with the
insanity [claim but] could also arguably be made along the
lines of the Mott issues as to form and intent and [Clark’s]
capacity for intent,” it would “let [counsel] go ahead and get
all that stuff in [the record] because it goes to the insanity
issue and because we’re not in front of a jury.” The court
added that “[a]t the end, I’ll let [counsel] make an offer of
proof as to the intent, the Mott issues, but I still think the
14 CLARK V. ARNOLD

[Arizona] supreme court decision [in Mott] is the law of the
land in this state.” “I will certainly allow you to preserve the
issue, you can argue or not argue, but you can make an offer
of proof at the conclusion of the case, but I don’t think it’s the
law of the land at this point.”

Clark presented significant evidence of his mental state
and the nature and effect of his delusions. Witnesses
included a psychiatrist as well as “classmates, school
officials, and his family [who] describ[ed] his increasingly
bizarre behavior over the year before the shooting.” Clark,
548 U.S. at 745.

Witnesses testified, for example, that paranoid
delusions led Clark to rig a fishing line with
beads and wind chimes at home to alert him to
intrusion by invaders, and to keep a bird in his
automobile to warn of airborne poison. There
was lay and expert testimony that Clark
thought Flagstaff was populated with “aliens”
(some impersonating government agents), the
“aliens” were trying to kill him, and bullets
were the only way to stop them. A
psychiatrist testified that Clark was suffering
from paranoid schizophrenia with delusions
about “aliens” when he killed Officer Moritz,
and he concluded that Clark was incapable of
luring the officer or understanding right from
wrong and that he was thus insane at the time
of the killing. In rebuttal, a psychiatrist for
the State gave his opinion that Clark’s
paranoid schizophrenia did not keep him from
appreciating the wrongfulness of his conduct,
as shown by his actions before and after the
 CLARK V. ARNOLD 15

shooting (such as circling the residential block
with music blaring as if to lure the police to
intervene, evading the police after the
shooting, and hiding the gun).

Id.

At the conclusion of his trial, Clark renewed his motion
for a directed verdict, which the court denied. On September
3, 2003, the court rejected Clark’s insanity defense and found
him guilty of first-degree murder. The court noted that the
case “was well prepared and professionally tried,” and that
the “state and the defense were exceedingly well represented
in this case.” The court divided its verdict into two parts.
First, it “f[ou]nd beyond a reasonable doubt that the
defendant, Eric Clark, shot and caused the death of police
officer, Jeff Moritz.” Second, it noted that Clark had entered
a plea of guilty but insane and it asked, (a) whether the
defendant was “afflicted with a mental disease or defect,”
and—after concluding that he was—asked (b) if that “disease
or defect caused him to not know his criminal act was
wrong,” as required by Arizona’s moral incapacity test. The
court concluded that Clark’s schizophrenia “did not . . .
distort his perception of reality so severely that he did not
know his actions were wrong.”

The court sentenced Clark to life in prison with possible
release after twenty-five years.

B. Direct Appeal and Clark’s Tripartite Framework

On appeal to the Arizona intermediate appellate court,
Clark argued “that it was not inconsistent with Mott to
consider nonexpert evidence indicating mental illness on the
16 CLARK V. ARNOLD

issue of mens rea, and [he] argued that the trial judge had
failed to do so.” The State responded that Mott barred “any
evidence reflecting upon a mentally ill criminal defendant’s
ability to form the necessary mens rea.”

In January 2005, the Arizona Court of Appeals affirmed
Clark’s conviction and sentence. While it noted that Clark
had argued that the court erred in refusing to consider
evidence of his mental disease or defect in determining
whether he had the requisite mens rea to commit the murder,
“the record shows that the trial court did not prevent Clark
from presenting such evidence, despite our supreme court’s
decision to the contrary in Mott, even going so far as to
permit him to make an offer of proof on the issue at the close
of the evidence.” However, “[a]side from the evidence
offered to prove his insanity generally, Clark specified no
evidence in his offer of proof that demonstrated he was not
capable of knowing he was killing a police officer.” The
appellate court allowed that, “[e]ven assuming such evidence
was sufficient, the trial court was bound by the [Arizona]
supreme court’s decision in Mott, which held that ‘Arizona
does not allow evidence of a defendant’s mental disorder
short of insanity either as an affirmative defense or to negate
the mens rea element of a crime.’” Arizona v. Clark, 1 CA-
CR 03-0851; 1 CA-CR 03-0985 (Ariz. Ct. App. Jan. 25,
2005) (quoting Mott, 931 P.3d at 1051) The Arizona Supreme
Court denied Clark’s petition for review.

The U.S. Supreme Court granted certiorari to consider,
first, “whether due process prohibits Arizona’s use of an
insanity test stated solely in terms of the capacity to tell
whether an act charged as a crime was right or wrong,” and,
second, “whether Arizona violates due process in restricting
consideration of defense evidence of mental illness and
 CLARK V. ARNOLD 17

incapacity to its bearing on a claim of insanity, thus
eliminating its significance directly on the issue of the mental
element of the crime charged (known in legal shorthand as
the mens rea, or guilty mind).” Clark, 548 U.S. at 742. The
Court held “there [was] no violation of due process in either
instance” and affirmed the conviction. Id.

With regard to the second issue, which is at the heart of
the instant appeal, the Court described three categories of
evidence bearing on insanity: (1) “observation evidence,”
(2) “mental-disease evidence,” and (3) “capacity evidence.
Id. at 757–59.

It defined observation evidence as “testimony from those
who observed what Clark did and heard what he said; this
category would also include testimony that an expert witness
might give about Clark’s tendency to think in a certain way
and his behavioral characteristics.” Id. at 757. Such evidence
could “support a professional diagnosis of mental disease and
in any event is the kind of evidence that can be relevant to
show what in fact was on Clark’s mind when he fired the
gun.” Id. It “covers Clark’s behavior at home and with
friends, his expressions of belief around the time of the
killing that ‘aliens’ were inhabiting the bodies of local people
(including government agents), his driving around the
neighborhood before the police arrived, and so on.” Id.
(footnote omitted). Observation evidence can be presented
by “either lay or expert witnesses.” Id. at 758.

Second, “mental-disease evidence” is “opinion testimony
that Clark suffered from a mental disease with features
described by the witness.” Id. “As was true here, this
evidence characteristically but not always comes from
professional psychologists or psychiatrists who testify as
18 CLARK V. ARNOLD

expert witnesses and base their opinions in part on
examination of a defendant.” Id. Such evidence at trial
suggested Clark “fell within the category of schizophrenia.”
Id.

Third, “capacity evidence” refers to evidence of “a
defendant’s capacity for cognition and moral judgment (and
ultimately also his capacity to form mens rea).” Such
testimony can come from experts and focuses “on those
specific details of the mental condition that make the
difference between sanity and insanity under the Arizona
definition.” Id. The majority noted that these categories went
to core differences, not the margins, and reserved decision on
the “[e]xact limits” between them. Id. at 759.

After describing this taxonomy, the Court interpreted
Mott differently than the Arizona Court of Appeals. It read
Mott not as an absolute bar on all evidence of mental illness
that could negate mens rea, as the Arizona appellate court
had, but to bar only so-called mental disease and capacity
evidence: “It is clear that Mott itself imposed no restriction
on considering evidence of the first sort, the observation
evidence.” Id. at 760.

The Court faulted Clark’s counsel for failing to recognize
that Mott was so limited and for not preserving a claim that
the trial court improperly excluded observation evidence. Id.
at 764. But even on this central issue, the Court seemed to
contradict itself. “In this case,” the Court wrote, “the trial
court seems to have applied the Mott restriction to all
evidence offered by Clark for the purpose of showing what he
called his inability to form the required mens rea.” Id. at 760
(citation omitted). But that was not clear: “[T]he trial court’s
restriction may have covered not only mental-disease and
 CLARK V. ARNOLD 19

capacity evidence . . . but also observation evidence offered
by lay (and expert) witnesses who described Clark’s unusual
behavior.” Id. Later, the Court asserted more forcefully that
“[a]t no point did the trial judge specify any particular
evidence that he refused to consider on the mens rea issue.”
Id. at 763.

Finally, the Court concluded: “In sum, the trial court’s
ruling, with its uncertain edges, may have restricted
observation evidence admissible on mens rea to the insanity
defense alone, but we cannot be sure.” Id. at 764–65.
Nevertheless, it deemed a due process challenge to “a
restriction of observation evidence . . . neither pressed nor
passed” below, so it did not consider it. Id. at 765.5 It went
on to consider Clark’s claim that his due process rights were
violated by “Arizona’s prohibition of diminished capacity
evidence by criminal defendants”—not on observation
evidence. Id. (internal quotation marks omitted). The court
concluded that Mott’s (limited) restrictions were permissible.
Id. at 770.

The three-part evidentiary categorization the Court
created was a novel invention.6 The dissent criticized it as a

5
The dissent was more assertive, writing that the trial court’s ruling and
the terms of the verdict lead to the conclusion that the “most reasonable
assumption, then would seem to be that the trial court did not consider [all
evidence offered by Clark on his inability to form mens rea], and the Court
does not hold otherwise.” Clark, 548 U.S. at 784 (Kennedy, J.,
dissenting).
6
See Susan D. Rozelle, Fear and Loathing in Insanity Law: Explaining
the Otherwise Inexplicable Clark v. Arizona, 58 Case W. Res. L. Rev. 19,
44 (2007) (“[T]he Court’s breakdown of relevant evidence into
20 CLARK V. ARNOLD

“restructured evidentiary universe, with no convincing
authority to support it” and claimed it was “unworkable on its
own terms.” Id. at 781 (Kennedy, J., dissenting). It criticized
the Court for “refus[ing] to consider the key part of Clark’s
claim because his counsel did not predict the Court’s own
invention. It is unrealistic, and most unfair, to hold that
Clark’s counsel erred in failing to anticipate so novel an
approach.” Id. at 781–82.7

C. Post-Conviction Relief Proceedings

1. State Court

In September 2006, Clark filed a petition for post-
conviction relief in state court asserting five ineffective-
assistance-of-counsel claims. The Arizona trial court denied
all of Clark’s claims. As pertinent to our review, it held that
Clark’s trial counsel was not ineffective when they did not
raise the issue of competency after Clark had already been
found competent. While Clark’s counsel testified in a post-
conviction hearing that he thought Clark may have been
incompetent when he stopped drawing nonsensical symbols
and appeared to sleep during part of the trial, the court held
that “[m]inimal attorney competence does not place upon an

observational, mental-disease, and capacity categories has no basis in
anything that has come before.”).
7
Justice Breyer’s concurrence “agree[d] with the Court’s basic
categorization” but allowed that “the distinction among these kinds of
evidence will be unclear in some cases.” Id. at 780 (Breyer, J., concurring
in part and dissenting in part). He favored remanding the case to the
Arizona courts to “determine whether Arizona law, as set forth in Mott
and other cases, is consistent with the distinction the Court draws and
whether the trial court so applied Arizona law here.” Id.
 CLARK V. ARNOLD 21

attorney a duty to rely on subjective personal opinions about
a defendant’s mental state, disregarding the opinions of
numerous mental health experts.” It also held that
Middlebrook was not deficient for not seeking a competency
reevaluation based on a test by one of Clark’s psychiatrists
that was of “questionable methodology.”

The court additionally held that trial counsel was not
ineffective for not preserving an observation evidence claim
in light of the Supreme Court’s disagreement on the issue.
“Where arguably, three of the best legal minds in our country
disagree with five others, finding that petitioner preserved his
claim, this Court is hard pressed to find an ineffective
assistance of counsel claim,” it wrote. Because it held that
Clark’s counsel rendered adequate performance, the court did
not address prejudice on either claim. The Arizona Court of
Appeals and Arizona Supreme Court denied further review.

2. Federal District Court

In June 2009, Clark filed a federal habeas petition
asserting the following grounds for relief: (1) there was
insufficient evidence to support Clark’s conviction for first-
degree murder; (2) the trial court’s conclusion that Clark was
not insane at the time of the offense was unreasonable;
(3) Clark’s sentence constituted cruel and unusual
punishment; (4) Clark was not competent to stand trial or
waive his right to a jury trial; (5) Clark’s trial counsel was
ineffective for various reasons, including not preserving an
“observation evidence” claim and not re-raising the issue of
competency during trial; (6) the prosecutor engaged in
misconduct by not advising the trial court of the need for a
competency hearing regarding waiving a jury trial; and
22 CLARK V. ARNOLD

(7) Clark’s appellate counsel was ineffective for not raising
a competency claim and an observational-evidence claim.

a. Magistrate Judge’s Report and Recommendation

In November 2011, the magistrate judge issued a Report
and Recommendation (“R&R”) recommending that Clark be
granted habeas release on his claim that his trial counsel
rendered ineffective assistance of counsel by failing to
preserve an observational evidence claim. The R&R found
that the remainder of Petitioner’s claims were either
procedurally defaulted or without merit. The magistrate’s
R&R concluded that, even before the Supreme Court’s
decision in Clark, Mott did not exclude the entire field of
evidence—expert psychological evidence, diminished
capacity evidence, and what we now call observation
evidence—and that Clark’s counsel rendered deficient
performance when they failed to recognize that and make an
offer of proof, prejudicing Clark.

b. District Court Ruling

The district court disagreed with the R&R’s resolution of
the observation-evidence claim, and concluded that Clark’s
trial counsel was not ineffective for not preserving an
observational-evidence claim, and, even if his counsel did
render deficient performance, Clark failed to establish he was
prejudiced. The district court held that all the relevant
evidence was admitted by the trial court, although perhaps not
considered, and that there was no excluded evidence on
which the counsel could have made an offer of proof.
Furthermore, it held that Clark’s counsel raised the mens rea
issue “generally with the trial court, and then felt bound to
abide by the trial court’s ruling that he could not use this
 CLARK V. ARNOLD 23

evidence to negate mens rea other than to preserve the
underlying evidence for appeal.” Accordingly, the court
found the performance of Clark’s counsel adequate. And
while it did not need to reach the prejudice prong, the court
opined that Clark would have suffered no prejudice even if
the evidence had been omitted in light of the State’s
overwhelming evidence establishing the requisite mens rea.8

Clark timely appealed.

II. STANDARDS OF REVIEW

This case is governed by the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA). Under AEDPA,
habeas relief can be granted only if the state court’s
proceedings “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 “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)(1), (2). Under this “highly deferential standard,”
we “presume that ‘state courts know and follow the law.’”
Lewis v. Lewis, 321 F.3d 824, 829 (9th Cir. 2003) (quoting
Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam)).

Under § 2254, “[t]he pivotal question is whether the state
court’s application” of the Supreme Court precedent “was
unreasonable[,]” Harrington v. Richter, 131 S. Ct. 770, 785
(2011), as opposed to merely “incorrect or erroneous[,]”

8
Although the district court held that a claim by Clark that his appellate
counsel was ineffective was procedurally defaulted, the court addressed
it out of an abundance of caution, finding that Clark’s claim was meritless.
24 CLARK V. ARNOLD

Lockyer v. Andrade, 538 U.S. 63, 75 (2003). In applying this
standard, we must give “state-court decisions . . . the benefit
of the doubt,” Visciotti, 537 U.S. at 24, and we will refrain
from issuing a writ “so long as fairminded jurists could
disagree on the correctness of the state court’s decision.”
Richter, 131 S. Ct. at 786 (internal quotation marks and
citation omitted).

Under § 2254(d)(2), the “unreasonable determination”
clause, “a state-court’s factual determination is not
unreasonable merely because the federal habeas court would
have reached a different conclusion in the first instance.”
Burt v. Titlow, 134 S. Ct. 10, 15 (2013) (internal quotation
marks and citation omitted).

The “clearly established federal law” for ineffective
assistance of counsel claims is articulated in Strickland. See
Williams v. Taylor, 529 U.S. 362, 390 (2000). “Surmounting
Strickland’s high bar is never an easy task.” Padilla v.
Kentucky, 559 U.S. 356, 371 (2010). To succeed on a
Strickland claim, a defendant must prove that (1) his
counsel’s performance was deficient in violation of the Sixth
and Fourteenth Amendments, and (2) he was prejudiced by
counsel’s deficient performance. Strickland, 466 U.S. at
687–88.

Counsel is constitutionally deficient if the representation
“fell below an objective standard of reasonableness” such that
it was outside “the range of competence demanded of
attorneys in criminal cases.” Id. at 687 (internal quotation
marks and citation omitted). “The proper measure of attorney
performance remains simply reasonableness under prevailing
professional norms.” Id. at 688. “Judicial scrutiny of
counsel’s performance must be highly deferential,” and the
 CLARK V. ARNOLD 25

court must try not “to second-guess counsel’s assistance after
conviction.” Id. at 689. When evaluating counsel’s conduct,
“we must make every effort ‘to eliminate the distorting
effects of hindsight, . . . and to evaluate the conduct from
counsel’s perspective at the time.’” Gulbrandson v. Ryan,
738 F.3d 976, 988 (9th Cir. 2013) (quoting Strickland,
466 U.S. at 689).

A defendant is prejudiced by counsel’s deficient
performance if “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland, 466 U.S. at 694. A
“reasonable probability is a probability sufficient to
undermine confidence in the outcome” of a proceeding. Id.
Thus, a petitioner need not prove “counsel’s actions more
likely than not altered the outcome,” but rather he must
demonstrate that “[t]he likelihood of a different result [is]
substantial, not just conceivable.” Richter, 131 S. Ct. at 792
(internal quotation marks and citation omitted).

Because we are reviewing the Arizona courts’ assessment
of counsel’s performance under AEDPA, our review is
“doubly deferential.” Mirzayance, 556 U.S. at 123. Subject
to the constraints of Strickland, the Arizona courts must defer
to counsel’s judgment, and, subject to AEDPA’s standards,
we must defer to the Arizona courts’ assessment of counsel’s
judgment. See Titlow, 134 S. Ct. at 13.

We review a district court’s denial of a writ of habeas
corpus de novo. Dubria v. Smith, 224 F.3d 995, 1000 (9th
Cir. 2000).
26 CLARK V. ARNOLD

III. DISCUSSION

The district court certified three issues for appeal:
(1) whether “trial counsel was ineffective in failing to
preserve the issue of observational evidence,” (2) whether
trial counsel was ineffective because the “defendant was not
competent for the entire trial and trial counsel . . . failed to
request a re-evaluation,” and (3) whether “appellate counsel
. . . was ineffective because he failed to raise the issue of
competency in the appeal and failed to preserve the
observational evidence at trial for appellate review and filed
to this issue in the appeal.” We will consider each claim in
turn.

A. “Observation Evidence”

On appeal, Clark relies on the U.S. Supreme Court’s
holding that his trial counsel did not preserve observation
evidence as to mens rea. Clark, 598 U.S. at 763. Clark
argues that reasonable counsel would have preserved the
issue through an offer of proof when the trial court offered,
and failing to do so prejudiced Clark.

The State argues that Clark’s tripartite evidence
distinctions and its narrow interpretation of Mott created new
law that Clark’s counsel could not have reasonably been
expected to anticipate. Appellee’s Opening Brief 14 (citing
Smith v. Murray, 477 U.S. 527, 536 (1986)). With regard to
prejudice, the State argues that there was no evidence to
suggest that Clark did not know the victim was a police
officer, so even if observation evidence were considered on
the subject of mens rea, Clark’s claim would fail.
 CLARK V. ARNOLD 27

1. Ineffective Assistance

We conclude that it was not contrary to, nor an
unreasonable application of, Strickland for the state court to
determine that Clark’s trial counsel did not provide
ineffective assistance by failing to preserve explicitly the
issue of observation evidence. See Richter, 131 S. Ct. at 786.
First, it was unclear what evidence Mott excluded before the
Supreme Court established the definitive interpretation in
Clark. Mott concerned the testimony of an expert on BWS,
but its language swept broadly: “Arizona does not allow
evidence of a defendant’s mental disorder short of insanity
either as an affirmative defense or to negate the mens rea
element of a crime.” Mott, 931 P.2d at 1051 (first emphasis
added). The Arizona Supreme Court wrote of “evidence,”
not merely expert evidence that could speak to a defendant’s
mental disorder, and it held that such evidence offered to
“negate[] specific intent” was “not admissible for this
purpose.” Id. at 1054. Subsequent Arizona cases did not
clarify the ambiguity. See State v. McKeon, 38 P.3d 1236,
1240 n.2 (Ariz. 2002) (distinguishing Mott on the ground that
Mott concerned a mental disorder, unlike the involuntary
intoxication defense at issue). Even the magistrate judge,
who recommended granting the petition, noted that, “prior to
Clark there was no jurisprudence holding that Mott was
limited to expert testimony and did not include ‘observational
evidence.’” During Clark’s direct appeal, the State argued
that Mott barred “any evidence reflecting upon a mentally ill
criminal defendant’s ability to form the necessary mens rea,”
which was the interpretation the Arizona Court of Appeals
adopted. Accordingly, as the Supreme Court itself debated,
it was not clear before Clark whether Mott announced an
“expansive rule of exclusion . . . without any suggestion of a
limitation depending on the kind of evidence,” or one
28 CLARK V. ARNOLD

“limited to expert testimony.” Clark, 548 U.S. at 786
(Kennedy, J., dissenting); see id. at 762 (majority opinion)
(“[W]e understand that Mott is meant to confine to the
insanity defense any consideration of characteristic behavior
associated with mental disease.”) (citations omitted).

In light of the ambiguities within Mott itself, the paucity
of other relevant case law interpreting it, and the overlapping,
inexact boundaries between the categories of observation,
mental-disease, and capacity evidence within the Supreme
Court’s own formulation, see id. at 759, it was not an
unreasonable application of Strickland for the state court to
determine that Clark’s trial counsel was not ineffective when
it interpreted Mott more broadly than the Court did. Doing so
did not fall “outside the wide range of professionally
competent assistance,” Strickland, 466 U.S. at 690, especially
where “‘[a] fair assessment of attorney performance requires
that every effort be made to . . . evaluate the conduct from
counsel’s perspective at the time.’” Smith v. Murray,
477 U.S. 527, 536 (1986) (first alteration in original) (quoting
Strickland, 466 U.S. at 689). That is all the more true here,
since “[w]e do not expect counsel to be prescient about the
direction the law will take.” Hoffman v. Arave, 455 F.3d 926,
940 (9th Cir. 2006), vacated in part on other grounds,
552 U.S. 117, 128 (2008) (per curiam); see also Lowry v.
Lewis, 21 F.3d 344, 346 (9th Cir. 1994) (holding that a
lawyer is not ineffective for failing to anticipate a decision in
a later case).

Second, while the U.S. Supreme Court and the Arizona
Court of Appeals referred to Clark’s counsel’s failure to make
an offer of proof, the record shows that all of the evidence
that could have negated Clark’s mens rea was admitted and
it is, at best, unclear what evidence the trial court considered
 CLARK V. ARNOLD 29

and what it excluded. With regard to evidence of Clark’s
delusions, the trial court said it was bound by Mott and would
focus on the evidence’s relevance to the insanity defense, but
it would let counsel “get all that stuff in because it goes to the
insanity issue and because [the trial was] not in front of a
jury.” Middlebrook, one of Clark’s trial lawyers, later said
that, following the court’s ruling on the Mott issues, he
thought he “had preserved” the issue of “being able to bring
in lay people to discuss mens rea and, in effect, to negate
[Clark’s] ability to premeditate and/or perceive that Officer
Moritz was in fact a police officer versus an alien.” And,
during trial, Clark presented significant evidence from expert
and lay witnesses who spoke of Clark’s odd behaviors and his
expressed beliefs that aliens were taking the form of
government agents in Flagstaff. Clark’s trial counsel
believed that they had introduced “all the evidence” that they
thought was needed. “It wasn’t like we left out a piece of
evidence,” Middlebrook later said.

In Clark, the U.S. Supreme Court noted that the trial
judge did not “specify any particular evidence that he refused
to consider on the mens rea issue.” Clark, 548 U.S. at 763.
And, while holding that Clark’s counsel did not preserve the
observation evidence claim, the Court hedged, concluding
that the trial court “may have restricted observation evidence
admissible on mens rea to the insanity defense alone, but we
cannot be sure.” Id. at 764–65 (first emphasis added).

And if the Supreme Court itself was uncertain what the
state court had considered, it was not deficient performance
for Clark’s counsel to believe that the state court had
considered all of the relevant evidence going to Clark’s mens
rea consistent with the then-prevailing interpretation of Mott.
See Bell v. Cone, 543 U.S. 447, 455 (2005) (“We do not think
30 CLARK V. ARNOLD

that a federal court can presume so lightly that a state court
failed to apply its own law.”); Walton v. Arizona, 497 U.S.
639, 653 (1990) (“Trial judges are presumed to know the law
and to apply it in making their decisions.”), overruled on
other grounds by Ring v. Arizona, 536 U.S. 584 (2002).
Accordingly, we hold that the state court did not
unreasonably apply Strickland when it held that Clark’s trial
counsel did not fall below an objective standard of
reasonableness. See Wiggins v. Smith, 539 U.S. 510, 521
(2003); see also Mancuso v. Olivarez, 292 F.3d 939, 954 (9th
Cir. 2002) (“We will not second-guess such decisions or use
hindsight to reconstruct the circumstances of counsel’s
challenged conduct.”).

2. Prejudice

Because a defendant must show both that his counsel was
deficient and that he was prejudiced by the counsel’s actions,
our finding on performance would end our analysis. See
Murtishaw v. Woodford, 255 F.3d 926, 940 (9th Cir. 2001).
However, even if Clark could show that the trial court did not
consider observation evidence, he cannot show that he was
prejudiced because he cannot show that there was a
“substantial, not just conceivable” likelihood of a different
result if the court had considered such evidence. Richter,
131 S. Ct. at 792.

Since “the state courts found the representation adequate,
they never reached the issue of prejudice, and so we examine
this element of the Strickland claim de novo.” Rompilla v.
Beard, 545 U.S. 374, 390 (2005) (internal citation omitted).

“[I]n order to determine whether counsel’s errors
prejudiced the outcome of the trial, ‘it is essential to compare
 CLARK V. ARNOLD 31

the evidence that actually was presented to the jury with the
evidence that might have been presented had counsel acted
differently.’” Murtishaw, 255 F.3d at 940 (quoting Bonin v.
Calderon, 59 F.3d 815, 834 (9th Cir. 1995)). In the instant
case, the state presented substantial evidence that Clark had
the required mens rea—of “knowing[ly] . . . caus[ing] the
death of a law enforcement officer.” Ariz. Rev. Stat. Ann.
§ 13-1105(A)(3). Specifically, the state presented evidence
of: Clark’s professed anger toward the police and his
fantasies of retaliating against them; his efforts to attract a
police officer the night of the killing by circling a residential
block with loud music blaring; the use of a weapon at close
range from behind, showing an intent to kill; Clark’s
recognition of and response to police indicia (i.e., Mortiz
wore a uniform and Clark pulled over in response to
emergency lights and sirens); and Clark’s flight from the
scene and attempt to dispose of the murder weapon.

The magistrate judge wrote that such evidence was “not
inconsistent with a paranoid delusion that the officer was an
alien intent on killing him. . . . A malevolent alien in a police
uniform, driving a squad car with lights and sirens, is still a
malevolent alien.” Such conclusions draw us too deeply into
the shadowy details of Clark’s hallucinations. The statute
requires proving that Clark intentionally or knowingly killed
a police officer—that Clark might have thought the officer
was possessed by an alien does not otherwise negate the mens
rea needed to violate the statute. And, more to the point, the
substantial evidence the State presented that showed Clark’s
intent to kill a police officer, regardless of whether Clark
believed that the police officer was otherwise possessed,
means that Clark cannot show, as he must, “that there is a
reasonable probability that, but for counsel’s unprofessional
errors,” if they occurred, “the result of the proceeding would
32 CLARK V. ARNOLD

have been different.” Strickland, 466 U.S. at 694.
Accordingly, because we conclude that the result of the
proceeding would not have been different even if Clark’s
counsel’s was deficient, Clark was not prejudiced. See
Hurles v. Ryan, 752 F.3d 768, 782 (9th Cir. 2014) (holding
petitioner did not establish prejudice even where counsel’s
performance likely proved deficient).

B. Competency During Trial

A defendant is deemed competent to stand trial if he “has
sufficient present ability to consult with his lawyer with a
reasonable degree of rational understanding and . . . has a
rational as well as factual understanding of the proceedings
against him.” Dusky v. United States, 362 U.S. 402, 402
(1960) (per curiam) (internal quotation marks omitted). Once
a defendant is deemed competent and a trial has begun, a trial
court must “sua sponte inquire into a defendant’s competency
if a reasonable judge would be expected to have a bona fide
doubt as to the defendant’s competence. A bona fide doubt
exists if there is substantial evidence of incompetence.”
Amaya-Ruiz v. Stewart, 121 F.3d 486, 489 (9th Cir. 1997)
(internal citations and quotation marks omitted), overruled on
other grounds by United States v. Preston, 751 F.3d 1008
(9th Cir. 2014) (en banc). We have recognized a high bar for
what constitutes a “bona fide doubt” of competence. See
Williams v. Woodford, 384 F.3d 567, 606 (9th Cir. 2002)
(“[T]here is no constitutional prohibition against the trial and
conviction of a defendant who fails to pay attention in
court—whether out of indifference, fear, confusion, boredom,
or sleepiness—unless that defendant cannot understand the
nature of the proceedings against him or adequately assist
counsel in conducting a defense.”) (internal citation and
quotation marks omitted); de Kaplany v. Enomoto, 540 F.2d
 CLARK V. ARNOLD 33

975, 978–79 (9th Cir. 1976) (holding counsel was not
ineffective when he did not seek a hearing on defendant’s
competency where defendant made isolated outburst and
psychiatric testimony characterized him as “severely
disturbed”).

1. Ineffective Assistance

On appeal, Clark argues that his counsel was ineffective
for failing to call for another competency hearing after
Middlebrook noticed Clark did not seem to be paying
attention. Clark points to two pieces of evidence to support
his contention. First, he argues that while the state court
deemed him competent to stand trial in May 2003, his expert,
Dr. Susan Parrish, issued another report in July 2003, shortly
before the start of trial, in which she reiterated her concerns
that Clark was incompetent. Second, Middlebrook testified
during the state post-conviction relief proceedings that he
knew Clark was taking his Haldol injections but not taking a
second medication called Cogentin and that he noticed Clark
was not scribbling nonsensically as often as he used to and
was putting his head on the counsel’s table. Middlebrook
further testified that he believed a reasonable attorney would
have requested Clark’s reevaluation.

The State argues that Dr. Parrish had never believed Clark
was competent and her July report did not address whether
Clark’s lack of cooperation with his lawyers was volitional.
It criticizes the test Parrish administered, referred to as the
MacCAT-CA, as irrelevant, since only one part of the
test—the “understanding section”—is relevant to whether a
defendant understands the proceedings. It also argues that
Middlebrook’s after-the-fact personal impressions are
insufficient to demonstrate ineffective assistance.
34 CLARK V. ARNOLD

The State has the better of the argument here. First, as the
Arizona court pointed out, “[f]rom the beginning Dr. Parrish
never found [Clark] competent,” and thus her July 2003
report “was completely consistent with her opinion known to
all parties.” Three mental health experts—Drs. DiBacco,
Kassell, and Jasinski—had disagreed with Dr. Parrish, and
the trial court had found Clark competent. It was not
ineffective for “Mr. Middlebrook [to have] relied on the
experts’ opinions even though personally he disagreed with
them and proceeded to trial.”

Moreover, Dr. Parrish’s July 2003 report was
inconclusive. Dr. Parrish found that “Clark’s scores with
regard to a factual understanding of the legal proceedings
associated with adjudication placed him in the bottom 20% of
defendants considered competent and slightly above the mean
for defendants who were confirmed to be incompetent.” His
score “placed him on the borderline between Minimal or no
impairment and Mild impairment.” And, the Arizona court
found that even though Middlebrook thought Clark was not
competent to stand trial, counsel later admitted that Clark
“was competent at least early on in the beginning of trial.”

Second, Middlebrook was not ineffective because he
acted on his concern for Clark’s mental health when he told
the court he had doubts that Clark was receiving his
medication. The court said it would contact the jail to make
sure they were aware of a court order requiring he be given
his injections, even if involuntarily. After-the-fact second-
guessing about what Middlebrook should have done without
“substantial evidence” of incompetence is not required,
Amaya-Ruiz, 121 F.3d at 489, and does not comport with
Strickland’s restriction on adjudicating by hindsight.
Strickland, 466 U.S. at 689; see also Edwards v. Lamarque,
 CLARK V. ARNOLD 35

475 F.3d 1121, 1125 (9th Cir. 2007) (en banc) (“The trial
court need not accept a self-proclaimed assertion by trial
counsel that trial counsel’s performance was inadequate.”).

2. Prejudice

With regard to prejudice,9 to succeed, Clark has to show
not only that the trial court would have ordered a
reevaluation, but also that there was “a reasonable probability
that the defendant would have been found incompetent to
stand trial had the issue been raised and fully considered.”
Stanley v. Cullen, 633 F.3d 852, 862 (9th Cir. 2011) (quoting
Jermyn v. Horn, 266 F.3d 257, 283 (3d Cir. 2001)); see also
Strickland, 466 U.S. at 696. In light of the lengthy
competency process, the reports of several doctors attesting
to Clark’s competence, the absence of any new information
in Dr. Parrish’s July 2003 report, and the judge’s order that
Clark be forcibly medicated, it is not reasonably probable that
the trial court would have granted a second competency
hearing and deemed Clark incompetent. See Hibbler v.
Benedetti, 693 F.3d 1140, 1150 (9th Cir. 2012), cert. denied,
133 S. Ct. 1262 (2013); Stanley, 633 F.3d at 863; see also
Jermyn, 266 F.3d at 287 (holding there was no reasonable
probability court would have found defendant insane).
Accordingly, it was not contrary to, nor an unreasonable
application of, Strickland for the state court to determine that
Clark’s trial counsel was not ineffective when they did not
request a reevaluation of Clark’s competency during trial.

9
We address the prejudice prong de novo since the state court did not
reach it. See Rompilla, 545 U.S. at 390.
36 CLARK V. ARNOLD

C. Appellate Counsel

Clark argues that his appellate counsel was ineffective for
not raising the observation evidence or competency claims on
appeal.

The magistrate judge concluded that Clark did not fairly
present a federal claim that his appellate counsel was
ineffective, and that the claim was procedurally defaulted
because it was too late to return to the Arizona courts to raise
the claim. The district court adopted the magistrate judge’s
conclusion but also disposed of the claim on the merits, in the
alternative, in the event that a Supreme Court case then
pending—ultimately decided as Martinez v. Ryan, 132 S. Ct.
1309 (2012)—would materially change the law.

Clark did not contest the district court’s ruling on
procedural default in his opening brief. “We review only
issues which are argued specifically and distinctly in a party’s
opening brief.” Greenwood v. F.A.A., 28 F.3d 971, 977 (9th
Cir. 1994). Accordingly, we deem Clark’s claim of
ineffective assistance of appellate counsel abandoned because
he “d[id] not adequately raise this point in his appeal.” Smith
v. Idaho, 392 F.3d 350, 356 n.7 (9th Cir. 2004).10

10
Martinez established that, if, under state law, “claims of ineffective
assistance of trial counsel must be raised in an initial-review collateral
proceeding, a procedural default will not bar a federal habeas court from
hearing a substantial claim of ineffective assistance at trial if, in the initial
review collateral proceeding, there was no counsel or counsel in that
proceeding was ineffective.” 132 S. Ct. at 1320. It does not excuse
Clark’s failure to brief the issue of procedural default on appeal.
 CLARK V. ARNOLD 37

IV. CONCLUSION

We conclude that it was not contrary to, nor an
unreasonable application of, Strickland for the state court to
determine that Clark’s trial counsel did not provide
ineffective assistance by failing to preserve explicitly the
issue of observation evidence or by failing to request a
reevaluation of Clark’s competency during trial. We also
hold that Clark’s claim of ineffective appellate counsel is
procedurally defaulted. Accordingly, the district court’s
order is

AFFIRMED.