Timothy O'Keefe v. Matthew Cate, Secretary of The

FILED
NOT FOR PUBLICATION SEP 02 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
TIMOTHY O’KEEFE, No. 08-55339
Petitioner - Appellant, D.C. No. 3:04-CV-02088-W-NLS
v.
MEMORANDUM *
MATTHEW CATE, Secretary of the
California Department of Corrections and
Rehabilitation,
Respondent - Appellee.
Appeal from the United States District Court
for the Southern District of California
Thomas J. Whelan, District Judge, Presiding
Submitted August 30, 2010 **
Pasadena, California
Before: KOZINSKI, Chief Judge, O’SCANNLAIN and GOULD, Circuit Judges.
O’Keefe’s habeas petition does not allege facts which, if true, would entitle
him to habeas relief on either his Sixth or his Fourteenth Amendment claim. See
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Schriro v. Landrigan, 550 U.S. 465, 474 (2007). The California state court
record—including the transcripts, letters from O’Keefe, and two mental health
evaluations—shows that O’Keefe actively participated in his defense, understood
the consequences of his guilty plea, and expressed his sentencing preferences to the
trial court. See Dusky v. United States, 362 U.S. 402, 402 (1960) (per curiam). In
light of the state court record, O’Keefe’s allegations of incompetence are
insufficient to compel an evidentiary hearing and the district court did not abuse its
discretion in declining to hold one. See Landrigan, 550 U.S. at 474 (“[I]f the
record refutes the applicant’s factual allegations or otherwise precludes habeas
relief, a district court is not required to hold an evidentiary hearing.”).
Similarly, the record shows that O’Keefe’s counsel negotiated a reasonable
plea bargain and adequately investigated O’Keefe’s mental health. Therefore,
O’Keefe has not shown that the state court’s rejection of his ineffective assistance
claim was unreasonable. See 28 U.S.C. § 2254(d); see also Strickland v.
Washington, 466 U.S. 668, 687 (1984).
AFFIRMED.
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