NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT FEB 06 2012
MOLLY C. DWYER, CLERK
RICHARD E. SHREVES, No. 10-35637 U.S. COURT OF APPEALS
Petitioner - Appellant, D.C. No. 6:10-cv-00019-DWM
v.
MEMORANDUM*
STATE OF MONTANA,
Respondent - Appellee.
Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding
Argued and Submitted January 11, 2012
Seattle, Washington
Before: TASHIMA, GRABER, and RAWLINSON, Circuit Judges.
Petitioner Richard E. Shreves appeals the district court’s summary dismissal
of his 28 U.S.C. § 2254 habeas petition. Reviewing de novo, Cooper v. Neven,
641 F.3d 322, 326 (9th Cir.), cert. denied, 132 S. Ct. 558 (2011), we reverse and
remand with instructions that the district court order a response from Respondent
State of Montana and direct Respondent to file a copy of the state-court record.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1. The district court erred in summarily dismissing Petitioner’s claim of
ineffective assistance of counsel. Summary dismissal is appropriate only "[i]f it
plainly appears from the petition and any attached exhibits that the petitioner is not
entitled to relief." 28 U.S.C. § 2254 pt. VI, ch. 153, Rule 4. In the petition,
Petitioner alleges that his lawyer failed to investigate whether Petitioner was taking
his psychotropic medications and, if so, the effects of those medications, and
whether Petitioner was competent. Petitioner’s allegations of incompetence have
potential merit because of his personal history. For instance, less than a year
before the trial at issue here, a district court judge in Idaho declared Petitioner
incompetent to stand trial. Additionally, reports in the record state that Petitioner
improved only with medication and that he had stopped taking his medication in
the months before this trial. It is not clear that no mental health records exist from
the time Petitioner left the mental hospital until trial, and it is not clear that his
counsel performed adequately by not obtaining further evaluations and pursuing
mental health arguments against guilt or, at a minimum, on sentencing mitigation.
We are cognizant of the double deference that we must give to the state-
court proceedings here. Knowles v. Mirzayance, 129 S. Ct. 1411, 1420 (2009).
And the state-court record, which Respondent must provide on remand, may lead
to dismissal on the pleadings. For instance, the state-court record might contradict
2
some of Petitioner’s allegations about his counsel’s conduct during trial. But,
without the state-court record, we cannot say that Petitioner "plainly . . . is not
entitled to relief" on his ineffective assistance of counsel claim. 28 U.S.C. § 2254,
Rule 4.
2. For the same reasons, the district court erred in summarily dismissing
Petitioner’s claim that the trial court failed to inquire into his competency, in
violation of his due process rights. See Stanley v. Cullen, 633 F.3d 852, 860 (9th
Cir. 2011) (citing Drope v. Missouri, 420 U.S. 162, 172 (1975); Pate v. Robinson,
383 U.S. 375, 378 (1966)).
3. But the district court did not err in summarily dismissing Petitioner’s
Sixth Amendment claim regarding his right to be present during critical
proceedings. See Hovey v. Ayers, 458 F.3d 892, 901 (9th Cir. 2006) (citing
United States v. Wade, 388 U.S. 218, 224–25 (1967)). Petitioner correctly
concedes that three of the four proceedings alleged to be "critical" in the petition
are not, in fact, "critical" for purposes of the Sixth Amendment. The final
proceeding—an in camera hearing regarding alleged juror misconduct—is also not
a "critical" proceeding for purposes of the Sixth Amendment. United States v.
Long, 301 F.3d 1095, 1103 (9th Cir. 2002) (per curiam).
AFFIRMED in part, REVERSED in part, and REMANDED with
instructions.
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FILED
Shreves v. State of Montana, No. 10-35637 FEB 06 2012
MOLLY C. DWYER, CLERK
Rawlinson, Circuit Judge, concurring in part and dissenting in part: U.S. COURT OF APPEALS
I respectfully dissent from that portion of the majority disposition reversing
the district court’s summary dismissal of the habeas petition filed by Richard E.
Shreves. Although Petitioner alleged that his lawyer failed to investigate whether
Petitioner was taking medications and/or the effects of those medications, there is
no allegation that Petitioner was incompetent or that there was a reasonable
probability that an investigation by Petitioner’s counsel would have affected the
outcome of his proceedings. See Ivey v. Bd. of Regents of the Univ. of Alaska, 673
F.2d 266, 268 (9th Cir. 1982) (noting that liberal interpretation of a pro se
complaint “may not supply essential elements of the claim that were not initially
pled”); see also Turner v. Calderon, 281 F.3d 851, 873 (9th Cir. 2002) (describing
the elements of ineffective assistance of counsel as including a probable effect on
the outcome of the proceedings).
The reversal based on the district court’s failure to sua sponte examine
Shreves’ competency is even more indefensible. Nothing in the complaint even
remotely suggests that the judge was alerted to a potential issue of competency.
We are not de facto counsel for habeas petitioners and should not manufacture
causes of action where none have been legally pled. For that reason, I respectfully
dissent.