Richard Allan Moran v. Salvador Godinez, Warden , 40 F.3d 1567 ( 1994 )

Opinion by Judge THOMPSON; Dissent by Judge PREGERSON.

DAVID R. THOMPSON, Circuit Judge:

Richard Allan Moran pleaded guilty to three counts of capital murder and was sentenced to death by a Nevada state court. After exhausting his state court appeals, he filed a petition for habeas corpus in the United States District Court for the District of Nevada pursuant to 28 U.S.C. § 2254. The district court denied his petition and Moran appeals. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

FACTS AND PROCEEDINGS

On August 13, 1984, Moran summoned police to the hospital room where he was recuperating from an attempted suicide. He confessed to killing his ex-wife at her home and two people at the Red Pearl Saloon. He was charged with three counts of capital murder. Initially, he pleaded not guilty to each count. Detailed facts of the murders and the circumstances of Moran’s confession are set forth in Godinez v. Moran, — U.S. -, — - —, 113 S.Ct. 2680, 2682-84, 125 L.Ed.2d 321 (1993), and Moran v. State, 103 Nev. 138, 140-11, 734 P.2d 712, 713 (1987).

On November 28, 1984, Moran appeared before the Nevada trial court. He said he wanted to discharge his attorneys and plead guilty to prevent the presentation of mitigating evidence on his behalf.

Before accepting Moran’s waiver of counsel and guilty pleas, the court interrogated Moran at length. During this interrogation, the following colloquy occurred:

The Court: Are you presently under the influence of any drug or alcohol?

Moran: Just what they give me in, you know, medications.

Although Moran indicated he was under the influence of medications, the trial court made no inquiry as to the medications he had been given, the dosages, the times when he was medicated, or how the medications affected him. The court simply moved on to other questions, and eventually accepted Moran’s waiver of counsel and guilty pleas.

On January 21,1985, a three-judge Nevada state court sentenced Moran to death for each of the three murders. On appeal, the Nevada Supreme Court affirmed Moran’s death sentences for the two Red Pearl Saloon murders, but reversed his death sentence for the murder of his ex-wife. On this count, the Nevada Supreme Court remanded for imposition of a life sentence without possibility of parole. Id. at 141-42, 734 P.2d at 714.

On July 30, 1987, Moran filed a petition in the Nevada state court for post-conviction relief. He alleged his guilty pleas and waiver of counsel were involuntary because he was “under the influence of drugs,” he was mentally incompetent to represent himself, and the trial court failed to conduct a proper canvass “as to mental and legal competency.” After an evidentiary hearing, the Nevada post-conviction court found Moran was competent to represent himself and plead guilty, and his guilty pleas and waiver of counsel were voluntary. The Nevada Supreme Court dismissed Moran’s appeal. Moran v. Warden, 105 Nev. 1041, 810 P.2d 335, cert. denied sub. nom Moran v. Whitley, 493 U.S. 874, 110 S.Ct. 207, 107 L.Ed.2d 160 (1989).

Moran then filed a habeas petition in the United States District Court for the District of Nevada. The district court denied the petition. We reversed in Moran v. Godinez, 972 F.2d 263 (9th Cir.1992). We concluded the state court should have entertained a good faith doubt during the November 28, 1984 change-of-plea proceedings as to Moran’s competency to discharge counsel and plead guilty. Id. at 265. We held the failure of the trial court to conduct a competency hearing at that time violated Moran’s right to due process. Id. We also held the 1987 post-conviction court failed to correct the trial court’s error because the post-conviction court incorrectly applied the standard of competency to stand trial, which we stated was a lower standard than the standard of competency to waive counsel and plead guilty. Id. at 267.

The Supreme Court reversed. Godinez, — U.S. at -, 113 S.Ct. at 2688. The Court held the standard for competency to waive counsel and plead guilty was identical to the standard for competency to stand trial. Id. at -, 113 S.Ct. at 2686. The Court also stated when a court has reason to doubt a defendant’s competence, in addition to the competency inquiry, the court “must satisfy itself that the waiver of his constitutional rights is knowing and voluntary.” Id. at -, 113 S.Ct. at 2687.¹ The Court remanded the cause to us for further proceedings. Id. at -, 113 S.Ct. at 2688.

STANDARD OF REVIEW

We review the denial of a habeas corpus petition de novo. Mikes v. Borg, 947 F.2d 353, 356 (9th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 3055, 120 L.Ed.2d 921 (1992).

DISCUSSION

A Competence to Waive Counsel and Plead Guilty

Due process requires a court to conduct a competency hearing on its own motion, before permitting a defendant to waive constitutional rights, whenever a reasonable judge would be expected to have a bona fide doubt as to the defendant’s competence. United States v. Lewis, 991 F.2d 524, 527 (9th Cir.) (competence to plead guilty), cert. denied, — U.S. -, 114 S.Ct. 216, 126 L.Ed.2d 172 (1993); Harding v. Lewis, 834 F.2d 853, 856 (9th Cir.1987) (competence to waive counsel), cert. denied, 488 U.S. 871, 109 S.Ct. 182, 102 L.Ed.2d 151 (1988); Chavez v. United States, 656 F.2d 512, 515-16 (9th Cir.1981) (competence to plead guilty). A bona fide doubt should exist when there is substantial evidence of incompetence. Lewis, 991 F.2d at 527; Harding, 834 F.2d at 856; Chavez, 656 F.2d at 517. Although no particular facts signal incompetence, suggestive evidence includes a defendant’s demean- or before the trial court, previous irrational behavior, and available medical evaluations. Drope v. Missouri, 420 U.S. 162, 180, 95 S.Ct. 896, 908, 43 L.Ed.2d 103 (1975); Lewis, 991 F.2d at 527; Harding, 834 F.2d at 856.

As we said in our previous decision, a reasonable jurist should have entertained a good faith doubt as to Moran’s competence during the November 28,1984 change-of-plea hearing. Moran, 972 F.2d at 265. When the trial court asked Moran whether he was “presently under the influence of drugs or alcohol,” Moran indicated he was taking medications. Although the court made no inquiry, it is not disputed the medications Moran was taking were Inderal, Dilantin, Phenobarbital, and Vistaril. Inderal, a “beta-blocker,” is used in the management of hypertension. Physician’s Desk Reference (42d ed. 1988) at 650-52; Docket No. 26, Exhibit III. Dilan-tin is an antiepileptic drug that inhibits the spread of seizure activity in the motor cortex and is related to barbiturates in its chemical structure. Id. at 1543-45. Vistaril is used for relief of anxiety and tension associated with psychoneurosis. It acts on certain key regions of the central nervous system. Id. at 1625-26. Phenobarbital is a sedative used to counteract central nervous system stimulation. Id. at 1667-68. It is also not disputed that these medications were given to Moran while he was in jail awaiting trial, although the record is silent as to what dosages he was given, the times they were administered, and the effect they had on him.

The court also was aware that three months before the hearing, Moran attempted suicide, and that he wanted to fire his attorneys, plead guilty to three counts of capital murder, and die.

In these circumstances, the state trial court should have entertained a bona fide doubt as to Moran’s competence. The court should have held an immediate competency hearing. It did not, and as a result Moran’s right to procedural due process was violated. Pate v. Robinson, 383 U.S. 375, 385, 86 S.Ct. 836, 842, 15 L.Ed.2d 815 (1966); Lewis, 991 F.2d at 527; Harding, 834 F.2d at 856. The state contends, however, that the 1987 post-conviction hearing cured this due process violation. We agree.

When a state court wrongfully fails to hold a competency hearing, “it often may be possible to repair the damage retrospectively.” Evans v. Raines, 800 F.2d 884, 888 (9th Cir.1986). Although retrospective competency hearings are disfavored, see Drope, 420 U.S. at 183, 95 S.Ct. at 909; Blazak v. Ricketts, 1 F.3d 891, 894 n. 3 (9th Cir.1993) (Tang, J., for an equally divided court), cert. denied sub. non Lewis v. Blazak, — U.S. -, 114 S.Ct. 1866, 128 L.Ed.2d 487 (1994), they are permissible whenever a court can conduct a meaningful hearing to evaluate retrospectively the competency of the defendant. See Evans, 800 F.2d at 888; De Kaplany v. Enomoto, 540 F.2d 975, 986 n. 11 (9th Cir.1976) (en banc), cert. denied, 429 U.S. 1075, 97 S.Ct. 815, 50 L.Ed.2d 793 (1977). While the passage of time is significant in determining whether such a hearing can be held, Pate, 383 U.S. at 387, 86 S.Ct. at 843, medical reports contemporaneous to the time of the initial hearing greatly increase the chance for an accurate retrospective evaluation of a defendant’s competence. See Sieling v. Eyman, 478 F.2d 211, 215-16 (9th Cir.1973). See also Ray v. Bowen, 843 F.2d 998, 1006 (7th Cir.1988).

In the present case, the post-conviction hearing was held three years after Moran waived counsel and pleaded guilty. The judge who presided at the post-conviction hearing was the same judge who presided over the change-of-plea hearing. He was ideally situated to “adduce [additional] evidence,” Evans, 800 F.2d at 888, as to Moran’s competency at the earlier proceeding. But see United States v. Aponte, 591 F.2d 1247, 1250 (9th Cir.1978). The post-conviction court also had the benefit of two medical reports from psychiatrists who evaluated Moran’s competency two months before the change-of-plea hearing, and who opined he was competent to stand trial. One of these examining psychiatrists testified before the post-conviction court.

The post-conviction court also had the records from two hearings held after the change-of-plea hearing. At a presentencing hearing on December 17, 1984, conducted less than three weeks after the change-of-plea hearing, Moran repeated his desire not to be represented by counsel, and stated he did not wish to withdraw his guilty pleas. He also indicated he did not want to present witnesses at the sentencing hearing, or allow an attorney to gather mitigating evidence. At the sentencing hearing on January 21, 1985, Moran refused to present mitigating evidence, cross-examine witnesses, or view the exhibits used by the state to prove aggravating circumstances. The judge who presided at these two subsequent hearings also presided at the change-of-plea hearing and post-conviction hearing.

Moran testified at the post-conviction hearing. He said the medications made him indifferent at the time he waived counsel and pleaded guilty, but he did not present any evidence to show that at the change-of-plea hearing he lacked the “‘ability to consult with his lawyer with a reasonable degree of rational understanding’ [or that he then lacked] ‘a rational [or] factual understanding of the proceedings against him.’ ” Godinez, - U.S. at -, 113 S.Ct. at 2685 (quoting Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 789, 4 L.Ed.2d 824 (1960) (per curiam)).

State court competency determinations are entitled to a presumption of correctness. Brewer v. Lewis, 989 F.2d 1021, 1027 (9th Cir.1993). We will overturn a competency finding only if it is not fairly supported by the record. Demosthenes v. Baal, 495 U.S. 731, 735, 110 S.Ct. 2223, 2225, 109 L.Ed.2d 762 (1990) (per curiam); Maggio v. Fulford, 462 U.S. 111, 117, 103 S.Ct. 2261, 2264, 76 L.Ed.2d 794 (1983) (per curiam); King v. Brown, 8 F.3d 1403, 1408 (9th Cir.1993); Brewer, 989 F.2d at 1027.

The trial court should have had a bona fide doubt as to Moran’s competence during the November 28, 1984 change-of-plea hearing. It should have conducted a competency hearing at that time. However, because the retrospective determination of Moran’s competence by the post-conviction court in 1987 is fairly supported by the record, we have no basis to overturn it. See Evans, 800 F.2d at 887 (“There was conflicting [evidence] on this issue, but the state court resolved the conflicts in the state’s favor. Its resolution is ‘fairly supported by the record.’”) (quoting 28 U.S.C. § 2254(d) (1992)). See also Brewer, 989 F.2d at 1027.

Moran challenges the findings of the post-conviction court by arguing that the court incorrectly placed the burden of proof on him to establish his incompetence. He relies on James v. Singletary, 957 F.2d 1562, 1570-71 (11th Cir.1992).

In James, 957 F.2d at 1570-71, the Eleventh Circuit interpreted Pate, 383 U.S. at 385, 86 S.Ct. at 842, to require a defendant to first establish that the trial court failed to conduct a competency hearing at the time a bona fide doubt should have arisen as to his competency. According to James, if a defendant establishes this Pate error, the burden of proof then shifts to the state to prove it is possible to hold a retrospective hearing to determine whether the defendant was competent to stand trial. James, 957 F.2d at 1570-71. If the state successfully demonstrates a meaningful retrospective hearing can be held, the burden of proof remains with the state at the retrospective proceeding to show the defendant was competent. Id. But see Porter v. Estelle, 709 F.2d 944, 949 n. 3 (5th Cir.1983) (petitioner bears burden of proof by preponderance of the evidence), cert. denied sub. nom Porter v. McKaskle, 466 U.S. 984, 104 S.Ct. 2367, 80 L.Ed.2d 838 (1984).

After the decision in James, the Supreme Court, in Medina v. California, — U.S. -, -, 112 S.Ct. 2572, 2579, 120 L.Ed.2d 353 (1992), held that a state may constitutionally place the burden of proof on a defendant at a competency hearing. The Court recognized a state must provide procedures “adequate to protect a defendant’s right not to be tried or convicted while incompetent.” Id. (internal quotations omitted). However,

[o]nce a State provides-a defendant access to procedures for making a competency evaluation, ... we perceive no basis for holding that due process further requires the State to assume the burden of vindicating the defendant’s constitutional right by persuading the trier of fact that the defendant is competent to stand trial.

Id. Thus, so long as the state provides adequate procedures to assess competence, it constitutionally may assign the burden of proof to the defendant.

Although Medina involved a pretrial competency hearing, the Supreme Court’s rationale is equally applicable to retrospective competency hearings. When it is established that a petitioner’s competence can be accurately evaluated retrospectively, there is no compelling reason to require states to divert from their normal procedures for assessing competence. Moran’s competence could be accurately evaluated retrospectively. Nevada was not constitutionally obligated to place the burden of proof on the prosecution to establish his competence, or to relieve him of the burden of establishing his incompetence.

Although there is no federal right to be free from the burden of proof in a retrospective state competency hearing, Medina, — U.S. at -, 112 S.Ct. at 2579, Moran contends that Nevada has created a federally protected state liberty interest in such a right. It is “well established that state laws can create liberty interests triggering federally enforceable procedural rights.” Dix v. County of Shasta, 963 F.2d 1296, 1299 (9th Cir.1992). “Misapplication of these laws that lead to deprivations of those liberty interests by state institutions may be reviewed in federal habeas proceedings.” Ballard v. Estelle, 937 F.2d 453, 456 (9th Cir.1991).

In Kentucky Department of Corrections v. Thompson, 490 U.S. 454, 462-63, 109 S.Ct. 1904, 1909-10, 104 L.Ed.2d 506 (1989), the Court held that to create a constitutionally protected liberty interest, a state law must contain substantive predicates governing an official’s decision, and explicit language specifying the outcome that must be reached if the predicates are met. See Dix, 963 F.2d at 1299.

Moran contends that in Doggett v. Warden, 93 Nev. 591, 595, 572 P.2d 207, 210 (1977), Nevada created a constitutionally protected liberty interest relieving a defendant of the burden of proving his incompetence if he demonstrates the trial court committed a Pate error. In Doggett, the Nevada Supreme Court stated, “[W]hen the trial court has failed to follow the procedural safeguards of Pate ... the State is required to forego its usual requirement that the defendant establish his incompetence as of the date of the original trial.” Id.

There is a distinction between state-created procedures and the substantive liberty interests those procedures are meant to protect. Olim v. Wakinekona, 461 U.S. 238, 250, 103 S.Ct. 1741, 1748, 75 L.Ed.2d 813 (1983) (“Process is not an end in itself. Its constitutional purpose is to protect a substantive interest to which the individual has a legitimate claim of entitlement.”); Smith v. Sumner, 994 F.2d 1401, 1406-07 (9th Cir.1993). Only the denial or misapplication of state procedures that results in the deprivation of a substantive constitutional right will implicate a federally recognized liberty interest. See Olim, 461 U.S. at 250-51, 103 S.Ct. at 1748-49 (state procedures that do not protect substantive rights do not create independent substantive rights); Smith v. Sumner, 994 F.2d at 1406; Toussaint v. McCarthy, 801 F.2d 1080, 1096-97 & n. 15 (9th Cir.1986), cert. denied, 481 U.S. 1069, 107 S.Ct. 2462, 95 L.Ed.2d 871 (1987).

Here, the post-conviction court violated Nevada law when it placed the burden of proving competency on Moran. Doggett, 93 Nev. at 595, 572 P.2d at 210. This violation of state law, however, did not result in the deprivation of a substantive constitutional right, because the state provided Moran with constitutionally adequate procedures to evaluate his competency, see Drope, 420 U.S. at 172, 95 S.Ct. at 904, even with the burden of proof on Moran. Medina, — U.S. at -, 112 S.Ct. at 2579. See also Hernandez v. Ylst, 930 F.2d 714, 719 (9th Cir.1991); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir.1985), cert. denied, 478 U.S. 1021, 106 S.Ct. 3336, 92 L.Ed.2d 741 (1986). Cf. Campbell v. Blodgett, 997 F.2d 512, 522 (9th Cir.1992), aff'd on reh’g en banc, 18 F.3d 662, (9th Cir.) (en banc), cert. denied, — U.S. -, 114 S.Ct. 1337, 127 L.Ed.2d 685 (1994); Fetterly v. Paskett, 997 F.2d 1295, 1297 (9th Cir.1993).

Moran also argues that because the post-conviction court failed to consider his claim that he was incompetent to discharge his counsel, it failed to cure the Pate violation. We reject this argument. The post-conviction court considered and rejected Moran’s claim that he was incompetent to plead guilty. The record supports this conclusion. The standard for competence to plead guilty is the same as the standard for competence to waive counsel. Godinez, — U.S. at -, 113 S.Ct. at 2686-87. Because the two standards are identical, one finding of competence suffices for both.

B. Knowing and Voluntary Waivers

“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.” Godinez, — U.S. at -, 113 S.Ct. at 2687. Whether a waiver of constitutional rights was made knowingly and voluntarily is a mixed question of law and fact which we review de novo. Campbell v. Wood, 18 F.3d 662, 672 (9th Cir.) (en banc), cert. denied, — U.S. -, 114 S.Ct. 1337, 127 L.Ed.2d 685 (1994); Terrovona v. Kincheloe, 852 F.2d 424, 427-28 (9th Cir.1988); Harding, 834 F.2d at 857.

1. Waiver of Counsel

To determine whether a defendant actually understands the nature and consequences of his waiver of counsel, the court must abide by the principles set forth in Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562 (1975). Godinez, — U.S. at -, 113 S.Ct. at 2687-88. Under Faretta, the defendant must “be aware of the nature of the charges against him, the possible penalties, and the dangers and disadvantages of self-representation.” United States v. Balough, 820 F.2d 1485, 1487 (9th Cir.1987). See also Hendricks v. Zenon, 993 F.2d 664, 669-70 (9th Cir.1993); United States v. Robinson, 913 F.2d 712, 714-15 (9th Cir.1990), cert. denied, 498 U.S. 1104, 111 S.Ct. 1006, 112 L.Ed.2d 1089 (1991); Harding, 834 F.2d at 857.

Prior to accepting Moran’s guilty plea, the trial court conducted an in-depth colloquy to determine whether Moran was waiving counsel knowingly and intelligently. As recounted by the Supreme Court in Godinez, — U.S. at -, 113 S.Ct. at 2683.

The court advised [Moran] that he had a right both to the assistance of counsel and to self-representation, warned him of the “dangers and disadvantages” of self-representation, ... inquired into his understanding of the proceedings and his awareness of his rights, and asked why he had chosen to represent himself.

The trial court further explained the first-degree murder charges against Moran, stated the death penalty could be imposed, and inquired whether Moran understood the charges and penalties. The court asked whether Moran recognized the possible defenses to the crimes with which he was charged, and whether he had discussed these defenses with his counsel. See Harding, 834 F.2d at 857. Moran’s affirmative answers to the court’s questions were unequivocal. See Robinson, 913 F.2d at 714; Adams v. Carroll, 875 F.2d 1441, 1444 (9th Cir.1989).

The court’s colloquy with Moran was probing and thorough, see Von Moltke v. Gillies, 332 U.S. 708, 723-34, 68 S.Ct. 316, 323-28, 92 L.Ed. 309 (1948), and satisfied its duty under Faretta. See Balough, 820 F.2d at 1487-88. We conclude, as did the post-conviction Nevada state court, that Moran knowingly and voluntarily waived his right to counsel.

2. Guilty Pleas

To determine whether a defendant’s guilty plea is “a voluntary and intelligent choice among the alternative courses of action,” North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 164, 27 L.Ed.2d 162 (1970), a trial court must follow the guidelines set forth in Boykin v. Alabama, 395 U.S. 238, 242-43, 89 S.Ct. 1709, 1711-12, 23 L.Ed.2d 274 (1969). See Godinez, — U.S. at - n. 12, 113 S.Ct. at 2687 n. 12. Under Boykin, the record of the plea proceeding must reflect that the defendant voluntarily waived his right to a jury trial, the right to confront his accusers, and his privilege against compulsory self-incrimination. Parke v. Raley, - U.S. -, -, 113 S.Ct. 517, 523, 121 L.Ed.2d 391 (1992); Boykin, 395 U.S. at 242-43, 89 S.Ct. at 1711-12; United States v. Butcher, 926 F.2d 811, 817 (9th Cir.), cert. denied, 500 U.S. 959, 111 S.Ct. 2273, 114 L.Ed.2d 724 (1991).

Prior to accepting Moran’s guilty pleas, the trial court engaged in an extensive canvass to determine whether Moran understood the rights he was forsaking by pleading guilty. As noted by the Court in Godinez, — U.S. at -, 113 S.Ct. at 2683, the trial court

determined that [Moran] was not pleading guilty in response to threats or promises, that he understood the nature of the charges against him and the consequences of pleading guilty, that he was aware of the rights he was giving up, and there was a factual basis for the pleas.

The trial court specifically asked Moran whether he understood his right to a trial by jury, his right to confront his accusers, and his privilege against compulsory self-incrimination. Moran answered affirmatively to each of these inquiries. The trial court did not err in determining Moran knowingly and voluntarily pleaded guilty.²

C. Ineffective Assistance of Counsel

Moran contends he received ineffective assistance of counsel before he discharged his attorneys at his change-of-plea hearing.

A defendant claiming ineffective assistance of counsel must demonstrate that counsel’s actions were outside the range of professionally competent assistance, and the defendant was prejudiced by counsel’s actions. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). The Strickland test applies to challenges to guilty pleas based on ineffective assistance of counsel. Iaea v. Sunn, 800 F.2d 861, 864 (9th Cir.1986). Whether a defendant received ineffective assistance of counsel is a legal question we review de novo. United States v. Swanson, 943 F.2d 1070, 1072 (9th Cir.1991).

Moran argues his attorneys failed to investigate whether he was competent to plead guilty, waive counsel, and forego the presentation of mitigating evidence. This argument lacks merit. Moran’s attorneys had him evaluated by two psychiatrists. These psychiatrists provided detailed, reasoned reports which contained their individual opinions that Moran was competent to stand trial. Moran’s attorneys were entitled to rely on these reports. The standard for competence to stand trial is identical to the standard for competence to waive constitutional rights. Godinez, — U.S. at -, 113 S.Ct. at 2686-87. Because counsel could rely on the psychiatrists’ reports that Moran was competent to stand trial, it was unnecessary for them to investigate his competence to plead guilty, waive counsel or forego the presentation of mitigating evidence.

Moran also argues his attorneys failed to investigate and research all possible defenses that might have been presented as mitigating evidence at the penalty phase of his capital sentencing hearing. Moran offers no evidence to support this claim. While it is true “counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary,” Strickland, 466 U.S. at 691, 104 S.Ct. at 2066, Moran fired his attorneys precisely because they wanted to gather and introduce mitigating evidence on his behalf.

Moran also contends Ms counsels’ failure to attempt to prevent the use of his confession taken while he was in the hospital recovering from his suicide attempt constituted ineffective assistance. We decline to consider this contention. In Hudson v. Moran, 760 F.2d 1027, 1029-30 (9th Cir.), cert. denied, 474 U.S. 981, 106 S.Ct. 387, 88 L.Ed.2d 339 (1985), we stated,

As a general rule, one who voluntarily and intelligently pleads guilty to a criminal charge may not subsequently seek federal habeas corpus relief on the basis of pre-plea constitutional violations. A defendant may only attack the “voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not witMn the range of competence demanded of attorneys in criminal cases.”

Id. (internal citations omitted) (quoting Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 1608, 36 L.Ed.2d 235 (1973)). See also McMann v. Richardson, 397 U.S. 759, 770-71, 90 S.Ct. 1441, 1448-49, 25 L.Ed.2d 763 (1970). But see Creech v. Arave, 947 F.2d 873, 876-79 (9th Cir.1991), (habeas appeal addressing petitioner’s argument that counsel failed to provide certain information), rev’d on other grounds, — U.S. -, 113 S.Ct. 1534, 123 L.Ed.2d 188 (1993). Moran’s contention that his attorneys were ineffective because they failed to attempt to prevent the use of his confession is the assertion of an alleged pre-plea constitutional violation. We will not consider that claim in this habeas appeal.

CONCLUSION

The state trial court should have entertained a bona fide doubt as to Moran’s competence during his November 28, 1984 change-of-plea hearing. The failure to hold a competency hearing at that time violated Moran’s constitutional right to due process. Pate, 383 U.S. at 385, 86 S.Ct. at 842. That violation was cured, however, by the state court’s post-conviction retrospective hearing held in 1987. That court found Moran was competent when he waived counsel and entered his guilty pleas. That finding is fairly supported by the record. Moran knowingly and voluntarily waived his right to counsel and pleaded guilty. He was not demed effective assistance of counsel.

AFFIRMED.

1 . Whereas competency involves a defendant's general ability to understand the proceedings against him, " ‘[t]he purpose of the 'knowing and voluntary’ inquiry, by contrast, is to determine whether the defendant actually does understand the significance and consequences of a particular decision.'" Godinez, - U.S. - n. 12, 113 S.Ct. at 2687 n. 12.

2 . The post-conviction court also found Moran knowingly and voluntarily pleaded guilty.