                                                                         FILED
                                                                          JAN 10 2018

                            NOT FOR PUBLICATION                       MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS


                       UNITED STATES COURT OF APPEALS

                            FOR THE NINTH CIRCUIT


MACK A. WEST, Jr.,                              No.   16-16795

                  Petitioner-Appellant,         D.C. No.    2:09-cv-03147-JKS

    v.
                                                MEMORANDUM *
RANDY GROUNDS, Warden,

                  Respondent-Appellee.


                   *
                    Appeal from the United States District Court
                       for the Eastern District of California
                   James K. Singleton, District Judge, Presiding

                       Argued and Submitted December 7, 2017
                              San Francisco, California


Before: LUCERO, ** RAWLINSON, and OWENS, Circuit Judges.

         Mack A. West, Jr., a California state prisoner, appeals the district

court’s denial of his 28 U.S.C. § 2254 habeas corpus petition. He contends

*
      This disposition is not appropriate for publication and is not
precedent except as provided by Ninth Circuit Rule 36-3.
**
      The Honorable Carlos F. Lucero, United States Circuit Judge for the
U.S. Court of Appeals for the Tenth Circuit, sitting by designation.

                                          1
that his due process rights were violated when the trial court declined to

conduct a fourth competency hearing after his mental health deteriorated

and he attempted suicide. Exercising jurisdiction under 28 U.S.C. § 2253,

we affirm.

      Under the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), federal habeas relief is available only if a state court’s

decision       “(1) was ‘contrary to, or involved an unreasonable application

of, clearly established Federal law, as determined by the Supreme Court,’

or (2) ‘was based on an unreasonable determination of the facts in light of

the evidence presented in the State court proceeding.’” Torres v. Prunty,

223 F.3d 1103, 1107 (9th Cir. 2000) (quoting § 2254(d)(1)-(2)). A state

trial court’s determination that a competency hearing is not required is a

finding of fact entitled to deference unless it is objectively unreasonable.

Id. at 1105.

      A defendant has the right under the Due Process Clause of the

Fourteenth Amendment to not be tried or convicted while he is incompetent

to stand trial. Pate v. Robinson, 383 U.S. 375, 378, 385 (1966). A

competent defendant must have “sufficient present ability to consult with

his lawyer with a reasonable degree of rational understanding” and “a


                                         2
rational as well as factual understanding of the proceedings against him.”

Dusky v. United States, 362 U.S. 402, 402 (1960).

      A trial judge must conduct a competency hearing sua sponte “[o]nly

when ‘the evidence raises a bona fide doubt’ about the defendant’s

competence to stand trial.” Davis v. Woodford, 384 F.3d 628, 644 (9th Cir.

2004) (quoting Pate, 383 U.S. at 385). A bona fide doubt is raised when “a

reasonable judge, situated as was the trial court judge whose failure to

conduct an evidentiary hearing is being reviewed, should have experienced

doubt with respect to competency to stand trial.” de Kaplany v. Enomoto,

540 F.2d 975, 983 (9th Cir. 1976) (en banc). The standard is one of

substantial evidence. See Cacoperdo v. Demosthenes, 37 F.3d 504, 510

(9th Cir. 1994) (“A good faith doubt about a defendant’s competence arises

if there is substantial evidence of incompetence.” (quoting United States v.

Lewis, 991 F.2d 524, 527 (9th Cir. 1993))).

      There is no “general standard with respect to the nature or quantum of

evidence necessary” to trigger a competency hearing. Drope v. Missouri,

420 U.S. 162, 172 (1975). Rather, the assessment is one in which “the trial

judge must evaluate all the evidence and evaluate the probative value of

each piece of evidence in light of the others.” Chavez v. United States, 656


                                       3
F.2d 512, 518 (9th Cir. 1981). “‘[E]vidence of a defendant’s irrational

behavior, his demeanor at trial, and any prior medical opinion on

competence to stand trial are all relevant in determining whether further

inquiry is required,’ and ‘one of these factors standing alone may, in some

circumstances, be sufficient.’” Maxwell v. Roe, 606 F.3d 561, 568 (9th

Cir. 2010) (quoting Drope, 420 U.S. at 180). Although a suicide attempt

can give rise to a bona fide doubt as to competence, it does not necessarily

do so. See United States v. Loyola-Dominguez, 125 F.3d 1315, 1318-19

(9th Cir. 1997) (recognizing that not “every suicide attempt inevitably

creates a doubt concerning the defendant’s competency”).

      We hold that the trial court’s denial of a fourth competency hearing

did not rest on a clearly unreasonable analysis of the facts in light of the

evidence. West was evaluated dozens of times, by at least four

psychologists, over the course of more than five years. Multiple evaluators

documented strong suspicions that he was exaggerating his symptoms to

delay trial. Based on the contents of his prior medical evaluations, a

reasonable judge could have concluded that West was feigning

incompetence to delay the proceedings.




                                        4
      It is certainly true that the suicide attempts that occurred shortly

before West’s request for a fourth competency hearing were appropriate to

consider in determining whether an additional competency hearing was

required. Maxwell, 606 F.3d at 571. The trial court judge did consider the

attempts in his analysis. Suicide attempts do not, however, necessitate a

bona fide doubt as to competence, and given the medical history in the

record and West’s behavior at trial, it was not clearly unreasonable for the

trial court judge to find no such doubt in this case.

      AFFIRMED.




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