FILED
NOT FOR PUBLICATION FEB 21 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
EDWIN GREGORY, No. 11-17494
Petitioner - Appellant, D.C. No. 1:98-cv-06521-LJO-MJS
v.
MEMORANDUM *
WILLIAM DUNCAN, Warden; and
ATTORNEY GENERAL FOR THE
STATE OF CALIFORNIA,
Respondents - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, District Judge, Presiding
Argued and Submitted January 14, 2013
San Francisco, California
Before: NOONAN, TASHIMA, and GRABER, Circuit Judges.
Petitioner appeals the district court’s denial of habeas relief. Reviewing de
novo, Williams v. Warden, 422 F.3d 1006, 1008 (9th Cir. 2005), we affirm.
1. The California Court of Appeal’s decision did not "involve[] an
unreasonable application of[] clearly established Federal law, as determined by the
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). The court correctly
identified the governing principles from Godinez v. Moran, 509 U.S. 389 (1993),
and Brady v. United States, 397 U.S. 742 (1970). It treated Petitioner’s repeated
and explicit decision not to challenge his competence as a concession of
competence. We are unaware of any Supreme Court case suggesting that the court
could not do so. The state court viewed the evidence as relating only to
Petitioner’s competence. Although one could consider the evidence to relate to
more than just competence, it was not unreasonable for the court to interpret it as
relating only to his competence. That being so, the court was left with: (a) a
concession that Petitioner met the competence prong of Godinez and (b) no
evidence of any reason other than lack of competence why Petitioner’s plea was
not knowing and voluntary. In those circumstances, we cannot say that "the state
court’s ruling . . . was so lacking in justification that there was an error well
understood and comprehended in existing law beyond any possibility for
fairminded disagreement." Harrington v. Richter, 131 S. Ct. 770, 786–87 (2011).
2. The performance of Petitioner’s lawyer did not fall "below an objective
standard of reasonableness." Strickland v. Washington, 466 U.S. 668, 688 (1984).
The lawyer adequately investigated Petitioner’s mental state and provided ample
evidence to the prosecution’s expert, the defense experts, and the jury of
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Petitioner’s impairment. Alternatively, it was not unreasonable for the state trial
court to conclude that Petitioner did not suffer prejudice from his lawyer’s failure
to introduce the additional evidence of his mental state. Although the
prosecution’s expert would have testified more favorably to the defense had he
possessed the information, the expert still believed that there was evidence
consistent with a lack of psychosis at the time of the murder, and he still would
have expressed no opinion as to Petitioner’s sanity. In those circumstances,
"fairminded jurists could disagree on the correctness of the state court’s decision."
Harrington, 131 S. Ct. at 786 (internal quotation marks omitted).
AFFIRMED.
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FILED
Gregory v. Duncan, No. 11-17494 FEB 21 2013
MOLLY C. DWYER, CLERK
NOONAN, Circuit Judge, dissenting: U .S. C O U R T OF APPE ALS
The California Court of Appeal stated the correct principles, but decided the
case contrary to the federal constitution as decided by the Supreme Court. The
California Court of Appeal did so by its illogical reasoning. The court made two
errors of logic:
(1) It held that if a defendant pleaded, the defendant could not attack his plea
on the basis of incompetence.
(2) It held that if the defendant was competent to plead, then the defendant
was competent to waive other constitutional rights.
Both propositions are contrary to federal law as stated by the Supreme
Court.
Summarizing its own holdings, the Supreme Court stated in Godinez v.
Moran, 509 U.S. 389, 400 (1992):
A finding that a defendant is competent to stand trial, however,
is not all that is necessary before he may be permitted to plead guilty
or waive his right to counsel. In addition to determining that a
defendant who seeks to plead guilty or waive counsel is competent, a
trial court must satisfy itself that the waiver of his constitutional rights
is knowing and voluntary. Park v. Raley, 506 U.S. 20, 28-29 (1992)
(guilty plea); Faretta, supra at 835 (waiver of counsel).
As found by both the California Superior Court and by the federal
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magistrate, Gregory was not competent to plead or to waive his constitutional
rights. His conviction should not stand.
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