Gregory Dixon v. Robert Ayers, Jr.

FILED
NOT FOR PUBLICATION OCT 23 2015

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

GREGORY DIXON, No. 13-57109

Petitioner-Appellant, D.C. No. 2:08-cv-07189-ABC-
AJW
v.

ROBERT L. AYERS, JR., Warden MEMORANDUM*

Respondent-Appellee.

On Appeal from the United States District Court
for the Central District of California
Audrey B. Collins, District Judge, Presiding

Submitted October 21, 2015**
Pasadena, California

Before: IKUTA and OWENS, Circuit Judges, and SESSIONS,*** District Judge.

Gregory Dixon, a California state prisoner, appeals from the district court’s denial

of his petition for a writ of habeas corpus. In 1998, after being initially deemed

*
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).
***
The Honorable William K. Sessions III, District Judge for the U.S.
District Court for the District of Vermont, sitting by designation.
incompetent to stand trial, Dixon pled no contest to two counts of second degree robbery

and received two consecutive twenty-five year sentences. He now alleges ineffective

assistance of counsel, arguing that his defense attorney failed to properly investigate his

mental health issues, and failed to advise him of the available mental health defenses

prior to the plea hearing. We have jurisdiction pursuant to 28 U.S.C. § 2253, and affirm.

We review the district court’s denial of a habeas corpus petition de novo. See

Smith v. Swarthout, 742 F.3d 885, 892 (9th Cir. 2014). Under the Antiterrorism and

Effective Death Penalty Act (AEDPA), habeas relief can only be granted if the state court

proceeding which adjudicated the claim on the merits “(1) resulted in a decision that was

contrary to, or involved an unreasonable application of, clearly established Federal law,

as determined by the Supreme Court of the United States; or (2) resulted in a decision that

was based on an unreasonable determination of the facts in light of the evidence presented

in the State court proceeding.” 28 U.S.C. § 2254(d). We review the Los Angeles County

Superior Court’s post-conviction relief decision in this matter, as it is “the ‘last reasoned

state court decision’ addressing [Appellant’s] claims.” Smith, 742 F.3d at 892.

Dixon contends that the state court’s denial of his ineffective assistance of counsel

claim was “contrary to, or involved an unreasonable application of” clearly established

Supreme Court law. 28 U.S.C. § 2254(d)(1). To show ineffective assistance of counsel,

Dixon must demonstrate that (1) his counsel’s performance was deficient; and (2)

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counsel’s deficient performance prejudiced his defense. Strickland v. Washington, 466

U.S. 668, 687 (1984). We must indulge a “strong presumption of competence” on the

part of counsel. Cullen v. Pinholster, 131 S. Ct. 1388, 1403 (2011). Because

Strickland’s test is already deferential to counsel, our review under § 2254 is “doubly

deferential.” Id. (internal quotation marks omitted). Furthermore, in a case involving

plea bargains, a reviewing court must keep in mind that “[p]lea bargains are the result of

complex negotiations suffused with uncertainty, and defense attorneys must make careful

strategic choices in balancing opportunities and risks.” Premo v. Moore, 562 U.S. 115,

124 (2011). In the plea bargain context, “in order to satisfy the ‘prejudice’ requirement,

the defendant must show that there is a reasonable probability that, but for counsel's

errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill

v. Lockhart, 474 U.S. 52, 59 (1985).

Dixon claims that his attorney failed to fully investigate his mental health issues

before advising him to enter into a plea agreement. It is clearly established that counsel

had “a duty to make reasonable investigations or to make a reasonable decision that

makes particular investigations unnecessary.” Strickland, 466 U.S. at 691. That said, the

duty to investigate is “‘not limitless.’” Hendricks v. Calderon, 70 F.3d 1032, 1039 (9th

Cir. 1995) (quoting United States v. Tucker, 716 F.2d 576, 584 (9th Cir. 1983)).

Furthermore, this Court has determined that “[t]here is no clear Supreme Court case law

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always requiring a mental health investigation at the guilt or penalty phase.” Gonzalez v.

Wong, 667 F.3d 965, 991 (9th Cir. 2011) (citations omitted).

Here the state habeas court’s conclusion that Dixon’s counsel did not render a

deficient performance was not an unreasonable application of Strickland. The trial court

in this case identified potential mental health issues early in the proceedings, and ordered

evaluations with respect to Dixon’s fitness to stand trial. As a result, defense counsel was

in possession of expert reports initially concluding that Dixon was not competent.

Subsequent reports, however, called into question whether Dixon was truly mentally ill,

or whether he was faking mental illness in order to escape full punishment for his crimes.

A defense attorney with access to these mixed reports could have reasonably

concluded that additional investigation into Dixon’s mental health was unnecessary. See

Rompilla v. Beard, 545 U.S. 374, 383 (2005) (“[R]easonably diligent counsel may draw a

line when they have good reason to think further investigation would be a waste.”). At

most, counsel might have used the mental health reports to argue either that Dixon did not

have the requisite intent to commit a robbery, or that he could not tell right from wrong.

Weighing against those claims, however, would have been reports calling into serious

question whether Dixon’s purported illnesses, both past and present, were real. See, e.g.,

Eggleston v. United States, 798 F.2d 374, 376 (9th Cir. 1986) (“[I]neffective assistance

claims based on a duty to investigate must be considered in light of the strength of the

4 13-57109
government’s case.”). Moreover, had Dixon gone to trial and presented his mental health

defenses, the potential maximum sentence for his crimes was between 176 and 186 years

to life. While Dixon’s ultimate sentence was still severe, by entering into a plea

agreement he at least secured the possibility of release before the end of his life.

The state court’s decision that Dixon also failed to show prejudice was not an

unreasonable application of Strickland. The state court could have reasonably concluded

that the evidence regarding Dixon’s mental state would not have changed the outcome of

a trial, and therefore that it was not reasonably probable that, had Dixon’s attorney

investigated his mental state, Dixon would have insisted on going to trial. Given the most

recent reports of potential malingering, the state court could reasonably conclude that a

jury would likely not consider additional mental health evidence as favorable to Dixon’s

cause. See Hill, 474 U.S. at 59.

At the change of plea hearing, defense counsel informed the trial court that he and

his client had discussed possible defenses “extensively.” Dixon agreed that he and his

attorney had discussed the case thoroughly. Moreover, in the course of entering his guilty

plea, Dixon was able to recall his actions during the crimes. The court accepted the plea

as knowing and voluntary, and Dixon has failed to show that counsel’s advice to enter

into a plea, particularly given the potential maximum sentence, fell below the Strickland

standard. We therefore find that the state court did not unreasonably apply clearly

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established federal law when it concluded that Dixon had failed to show ineffective

assistance of counsel.

AFFIRMED.

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