Richard Hodges v. David Runnels , 393 F. App'x 445 ( 2010 )

FILED
NOT FOR PUBLICATION AUG 25 2010
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RICHARD HODGES, No. 08-17113
Petitioner - Appellant, D.C. No. 2:04-cv-02087-MCE-
KJM
v.
FERNANDO GONZALEZ, MEMORANDUM*
Respondent-Appellee.
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, District Judge, Presiding
Submitted August 10, 2010**
San Francisco, California
Before: GRABER, CALLAHAN, and BEA, Circuit Judges.
Richard Hodges, a state prisoner, appeals the district court’s denial of his 28
U.S.C. § 2254 habeas petition. Hodges contends (1) that the state trial court
violated his right to due process when it failed sua sponte to conduct a competency
hearing and (2) that his attorneys rendered ineffective assistance when they failed
*
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).
to obtain and present evidence that he had suffered from hallucinations. We have
jurisdiction under 28 U.S.C. § 2253, and we affirm.
This court reviews de novo the district court’s denial of a petition for a writ
of habeas corpus. Maxwell v. Roe, 606 F.3d 561, 567 (9th Cir. 2010). Because
Hodges filed his federal habeas petition after April 24, 1996, his petition is subject
to the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Under
AEDPA, a writ of habeas corpus can be granted only if the state court’s decision
(1) “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) “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).
I.
The state trial court did not violate Hodges’s right to due process when it
failed sua sponte to conduct a competency hearing. Due process requires a court
sua sponte to conduct a competency hearing whenever the evidence before it raises
a “bona fide doubt” whether a defendant is competent. Drope v. Missouri, 420
U.S. 162, 180 (1975); Pate v. Robinson, 383 U.S. 375, 385 (1966). Unlike in
Drope and Robinson, Hodges’s evidence did not raise a bona fide doubt as to his
competence because his most recent suicide attempt occurred several months
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before he pleaded no contest, there was no evidence that his antidepressants
impaired his ability to understand the proceedings and to assist counsel in his
defense (rather, there was evidence he could do so), and he did not have a
pronounced history of irrational behavior. His reliance on non-Supreme Court
cases is to no avail; those cases are distinguishable and, in any event, are merely
persuasive under 28 U.S.C. § 2254(d)(1). Maxwell, 606 F.3d at 567.
II.
Hodges’s two trial attorneys did not render ineffective assistance when they
failed to discover and present evidence that Hodges previously had suffered from
hallucinations. To establish ineffective assistance of counsel, Hodges must show
his attorneys’ representation was both deficient and prejudicial. Strickland v.
Washington, 466 U.S. 668, 686 (1984). Hodges can show neither because the
evidence of his hallucinations was insignificant: the hospital record concluded that
there was no evidence that he had suffered from hallucinations and noted that he
denied any history of hallucinations. His mother’s declaration referred to only two
times in which he had suffered from hallucinations a year before his no contest
plea. Neither document suggests that hallucinations affected his competency at the
time of his plea.
AFFIRMED.
3