NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT APR 20 2012
MOLLY C. DWYER, CLERK
JOSHUA NATHAN HERNANDEZ, No. 11-16443 U.S. COURT OF APPEALS
Petitioner - Appellant, D.C. No. 3:10-cv-00201-CRB
v.
MEMORANDUM*
ANTHONY HEDGPETH, Warden,
Respondent - Appellee.
Appeal from the United States District Court
for the Northern District of California
Charles R. Breyer, District Judge, Presiding
Argued and Submitted April 16, 2012
San Francisco, California
Before: SCHROEDER, O’SCANNLAIN, and GRABER, Circuit Judges.
Petitioner, Joshua Nathan Hernandez, appeals the district court’s denial of
his petition for habeas corpus, brought pursuant to 28 U.S.C. § 2254, alleging
ineffective assistance of counsel. On de novo review, Stanley v. Schriro, 598 F.3d
612, 617 (9th Cir. 2010), we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Because Petitioner filed his petition after April 24, 1996, the Antiterrorism
and Effective Death Penalty Act (AEDPA) of 1996 governs review of his claims.
Under AEDPA, 28 U.S.C. § 2254(d), our review is highly deferential. Harrington
v. Richter, 131 S. Ct. 770, 785 (2011). The California Supreme Court denied
Petitioner’s ineffective assistance claim summarily, so we must decide what
theories could have supported the state court’s decision and then ask whether fair-
minded jurists could conclude that those theories followed applicable Supreme
Court precedents. Id. at 786.
Petitioner’s trial counsel obtained the assistance of three mental health
experts, including one psychiatrist, whose qualifications are not in question.
Counsel gave the experts some background materials, including a discharge
summary from the Atascadero State Hospital and writings by Petitioner. Counsel
succeeded in having Petitioner declared incompetent to stand trial and in having
him committed for treatment for a significant period of time. Counsel also
presented the mental health experts at the eventual trial, two of whom opined that
Petitioner was not guilty of the crimes by reason of insanity. Nonetheless,
Petitioner contends that counsel rendered ineffective assistance by failing to obtain
and to give to the experts easily obtainable mental health records, thus enabling the
prosecutor to argue that Petitioner was malingering.
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On this record, the state court permissibly could conclude that trial counsel’s
performance was not deficient, which is the first prong of the required analysis
under Strickland v. Washington, 466 U.S. 668 (1984). Petitioner points to cases
such as Rompilla v. Beard, 545 U.S. 374, 389–92 (2005); Wiggins v. Smith, 539
U.S. 510, 524–25 (2003); and Williams v. Taylor, 529 U.S. 362, 395–97 (2000),
finding deficient performance where trial counsel failed adequately to investigate
their clients’ mental health. But these cases are distinguishable on several grounds.
First, all of them deal with capital sentencing. We are aware of no Supreme Court
decision that has extended the same strict standard of investigation to the guilt
phase of noncapital cases. Second, trial counsel in the present instance put forward
a well-developed insanity defense whereas, in some of the cases to which
Petitioner points us, the issue of mental illness was ignored or treated cavalierly.
Third, we are aware of no Supreme Court opinion that places on trial counsel an
affirmative duty to supply all potentially relevant material even when not requested
by the retained experts.
Additionally, the state court permissibly could conclude that counsel’s
failure to obtain the records did not prejudice Petitioner, which is the second prong
of the Strickland analysis. This material is not entirely favorable to Petitioner’s
insanity defense. For example, the records reveal that, at age 14, Petitioner
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admitted to faking hallucinations in order to escape his group home. A discharge
report from a San Antonio facility noted that Petitioner suffered from "[n]o
psychosis." The Alaska period of institutionalization resulted from a run-in with
the law. Finally, the complete records from Atascadero include reports that
Petitioner delayed taking steps to restore competency and that he said, "I want to
plead to whatever gives me the least time."
In summary, although trial counsel could have done more, we cannot
conclude that the state court’s decision failed to meet the standards of AEDPA.
AFFIRMED.
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